FEDERAL COURT OF AUSTRALIA

SZBDN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 656

PRACTICE AND PROCEDURE - Appeal from Federal Magistrates Court where Federal Magistrate summarily dismissed application as incompetent but addressed the merits - whether decision interlocutory or final

Federal Court of Australia Act 1976 (Cth) s 24(1A), 25(1A)

Migration Act 1958 (Cth) s 424, 477(1A), 483A

Fifita v Minister for Immigration & Multicultural Affairs [2001] FCA 1694 applied

Ngu v Minister for Immigration & Multicultural & Indigenous Affairs  [2003] FCAFC 54 cited

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 cited

SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 cited

SZECK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 283 cited

VGAC & Anor v Minister for Immigration & Multicultural & Indigenous Affairs  [2004] FMCA 495 referred to

SZBDN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 210 OF 2005

HELY J

24 MAY 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed with costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     In a decision handed down on 12 December 2002 the Refugee Review Tribunal (‘the RRT’) affirmed the decision of the Minister’s delegate not to grant a protection visa to the appellant.  The appellant was notified of the RRT’s decision by letter of 12 December 2002.  The appellant is a citizen of Latvia, but of Russian ethnicity.  Before the RRT he claimed that he would be persecuted in Latvia because of his Russian ethnicity, and because of his membership of a particular social group consisting of the members of the family of his then fiancée’s mother.  The RRT accepted that the members of the family of his then fiancée’s mother were a particular social group for the purposes of the Convention, and that the appellant was a member of that group.

2                     The appellant claimed that his future mother-in-law had been demonised by articles appearing in the Latvian press which made Latvians revile her as a person who attempted to remove Latvian art objects from Latvia illegally.  The RRT found that the appellant’s claims in this respect were not borne out by the documentary evidence he offered in support of them, which consisted of the newspaper articles in question.

3                     The RRT found that there was a considerable amount of anti-Russian sentiment at the time of Latvian independence, and that it was clear the some still existed.  However, the independent evidence available to the RRT indicated, in its view, that the ethnic Russian minority in Latvia is not persecuted.  The RRT found that even the term ‘minority’ is a misnomer in several places, specifically in Riga and two other major cities (in a country which only has seven cities) where the Russians constitute the majority of the population.

4                     The RRT expressed its conclusions as follows:

‘The Tribunal is satisfied on the evidence before it that there was not a concerted press campaign to vilify the applicant’s future mother-in-law for reason of her ethnicity.  The Tribunal is satisfied that any anti-Russian sentiment directed at the applicant’s future mother-in-law (and the instances directed at himself in the past) was on an individual and random basis; it was not state-sanctioned, nor did it amount to persecution.  The Tribunal is also satisfied that the applicant’s future mother-in-law was able to access the law like any other citizen and that the State was neither unwilling nor unable to protect her.

The applicant himself made no claims, nor does the evidence suggest, that he suffered harm (let alone amounting to persecution) for reason of his ethnicity (or any other Convention reason) before his departure from Latvia.  He made reference to a couple of run-ins with nationalist youth but said specifically it was not part of the reason that he left Latvia.  His adviser originally made written claims about persecution on the grounds of race but the applicant did not follow these up at hearing.  The independent evidence indicates that Russians in Latvia are not subject to persecution within the meaning of the Convention.  On the evidence before it, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for reason of his race.’

5                     On 8 August 2003 the appellant filed an application seeking judicial review of the RRT’s decision in the Federal Magistrates Court.  Section 477(1A) of the Migration Act 1958 (Cth) (‘the Act’) provides that an application to the Federal Magistrates Court under s 483A of the Act in respect of a privative clause decision must be made to the Federal Magistrates Court within 28 days of the notification of the decision.  The application was made well outside of that period.  On 21 August 2003 the Minister filed a Notice of Objection to Competency, objecting to the jurisdiction of the Federal Magistrates Court to try the application for judicial review upon the ground that the application was not made within 28 days of the notification of the decision.

6                     On 31 January 2005 Mowbray FM upheld the objection to competency and dismissed the application seeking judicial review.  In order to come to that conclusion his Honour first needed to be satisfied that the RRT’s decision was a privative clause decision within the meaning of the Act: Ngu v Minister for Immigration & Multicultural & Indigenous Affairs  [2003] FCAFC 54.  If the RRT’s decision was infected by jurisdictional error then it was not a privative clause decision: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 (‘Plaintiff S157/2002’).  Of course, if the RRT’s decision was infected by jurisdictional error then the appellant would have been entitled, subject perhaps to discretionary considerations, to the relief which he sought in the application.  Hence it was necessary for the Federal Magistrate to consider, and the Federal Magistrate did in fact consider, the merits of the application in coming to his conclusion that the application was incompetent.

7                     The first ground on which review was sought was that ‘[T]he Tribunal totally ignored information provided by me and by my wife’.  His Honour noted that the appellant did not point to any essential element in his claim which the Tribunal had failed to consider, and in substance the appellant’s complaint was that the RRT got a series of facts wrong.  Even if this was so, it would not constitute jurisdictional error. 

8                     The second ground was ‘[T]he Tribunal failed to provide me with a source of information regarding [the] situation in Latvia’.  His Honour found that the appellant was provided with the substance of the information at the hearing to the effect that the situation for Russians in Latvia was reasonably good.  His complaint was that he was not provided with a source of the information, rather than with the substance of the information itself.  His Honour found that any such failure would not constitute a breach of s 424A of the Act having regard to subs (3)(a), nor would it amount to denial of common law procedural fairness. 

9                     Ground three was that ‘[T]he reasons the Tribunal put forward to justify its decision were incorrect (eg the Tribunal stated that my mother was Latvian)’.  The Federal Magistrate held that the Tribunal did make an erroneous statement to that effect, but that it did not impact upon the RRT’s decision.  This ground essentially went to a disputed factual matter, and did not point to any legal error. 

10                  Ground four was identified by the Federal Magistrate as being ‘[T]he Tribunal failed to consider future harm I’ll [be] subjected to should I go back to Latvia’.  Plainly, this matter was considered by the Tribunal although it came to a conclusion upon that question which was adverse to the appellant.

11                  On 15 February 2005 the appellant filed a Notice of Appeal in this Court.  The grounds of appeal are as follows:

‘The Magistrate Court misapprehended the essence of the appellant’s, arguments which can be summarised as follows:

(a)               [T]here was information available to the Tribunal (and to the Magistrate Court) that the appellant’s family had been harmed in Latvia (the list of evidence had been provided);

(b)               [T]he decision was based on the Tribunal’s erroneous finding that the harm to the appellant was and will be subjected to can not constitute persecution within the meaning of the Convention (because of lack of independent information);

(c)        [I]in light of availability of relevant information the issue of possible state protection was to be examined;

(d)               [B]y failing to do so the Tribunal (and the Magistrates) failed to observe the rules of natural justice, which constitute a jurisdictional error.’

12                  On 25 February 2005 the Minister filed a Notice of Objection to Competency of the Appeal objecting to the jurisdiction of the Court to hear the appeal on the grounds that the judgment of Mowbray FM of 31 January 2005 is interlocutory, and the appellant has not been granted leave to appeal against this judgment pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

13                  When this matter first came before me for directions I raised the Minister’s Notice of Objection to Competency with the appellant and enquired whether he wished the Notice of Appeal to be dealt with as an application for leave to appeal.  I adjourned the matter for some three weeks to enable the appellant to consider his position in that respect but on 5 April 2005 he advised me that he wished to progress with the hearing of his appeal.  Accordingly, I listed both the appeal and the Notice of Objection to Competency for hearing.  Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the Chief Justice directed that the appeal should be heard and determined before a single judge.

14                  There are at least two cases in which this Court, in a context similar to the present, has decided that the dismissal of proceedings as incompetent is an interlocutory decision from which an appeal only lies by leave.  The first is a decision of Lindgren J in SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543, although that case may be distinguished from the present, as Lindgren J concluded that the Federal Magistrate did not regard himself as determining finally the merits of the grounds of review relied upon in the amended application before him, even though his dismissal of the application as incompetent (like any summary dismissal) put an end to the proceedings.

15                  The second case is the decision of Madgwick J in SZECK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 283.  In that case, as in this, in order to determine the objection as to competency, the Federal Magistrate first had to decide whether the application to the Court was in respect of a privative clause decision, which necessarily involved a determination of whether or not there was a jurisdictional error on the part of the RRT.

16                  Whilst the decision of Lindgren J points to a conclusion that the decision of Mowbray FM was an interlocutory decision, it does not compel a finding to that effect.  However, the decision of Madgwick J is precisely in point, and I should follow it unless satisfied that it is plainly wrong.  I have not had the benefit of argument on this issue as the appellant is not legally represented.  Understandably, the appellant has not been able to persuade me that I should not follow the decisions to which I have referred and dismiss his appeal as incompetent.

17                  Section 477(1A) is, in the light of s 477(2), a matter which goes to the jurisdiction of the Federal Magistrates Court.  However, given the decision in Plaintiff S157/2002, I am unable to perceive what practical benefit is achieved by the filing of a Notice of Objection to Competency if the substantial merits of the appeal have to be determined in order to determine the objection as to competency.  The Minister submits that the dismissal of the application as incompetent is an interlocutory decision from which leave to appeal is required.  There has been no effective contradictor on the issue of whether the judgment appealed from is interlocutory in character, hence the preferable course is to consider the merits of the appeal rather than simply dismissing it on the technical basis of the claimed incompetency: see Fifita v Minister for Immigration & Multicultural Affairs [2001] FCA 1694 (‘Fifita’).  For the reasons given by the Full Court in Fifita that question is best left for determination on another day when both sides of the question can be debated. Counsel for the Minister did not oppose my dealing with the matter in this way.

18                  When the matter was called on for hearing the appellant provided me with a document styled ‘Appellant’s Supplementary Submissions’ which I have placed with the papers.  The appellant told me that he had prepared this document with the assistance of a migration agent.  The first seventeen paragraphs of that document refer to what is described as ‘the identical case’ of VGAC & Anor v Minister for Immigration & Multicultural & Indigenous Affairs  [2004] FMCA 495.  The case is not identical with the present case, and there is little, if any, relationship between the two cases.  Except to the extent that the Federal Magistrate’s decision records matters of principle which are of general application, it is of no assistance in the resolution of the present case.

19                  Paragraphs 18, 19, 20 and 21 of the ‘Appellant’s Supplementary Submissions’ are as follows:

‘18.      As far as the present case is concerned the Tribunal did ignore a number of important parts of the appellant’s claims and evidence provided by the applicant’s ex-wife and mother-in-law.  The evidence were as follows:

(i)                 a number of newspapers’ articles in which the facts that the appellant’s relatives had been subjected to “prosecution” by Latvian authorities where mentioned;

(ii)               evidence provided the appellant’s ex-wife and her brother.

19.              Similarly to the aforementioned case the Tribunal was not satisfied that the [applicant] had a well-founded fear of being persecuted within the meaning of the Convention.

20.              In making its decision the Tribunal fully relied upon country report information and ignored information and evidence set out in paragraph 18 of the submission.

21.              Given the fact that the Tribunal ignored relevant material and misconstrued the concept of persecution it should be accepted that it fell into jurisdictional error by constructively failing to exercise its jurisdiction and accordingly the decision was not made under the Act and is not a decision protected by the privative provisions in section 474(1) of the Migration Act.’

20                  The appellant informed me that newspaper articles referred to in par 18(i) of his submissions were those forwarded by his adviser to the RRT under cover of a letter dated 10 October 2002 which are reproduced in the Court book.  It is plain on the face of the RRT’s reasons that it gave substantive consideration to the translations of the newspaper articles, and to the appellant’s claims based upon them.  For example, at p 6-7 of the RRT’s reasons for decision the RRT says:

‘He sees the newspaper reportage about his girlfriend’s mother as being adverse specifically because of her ethnicity: it is as if the papers were saying “We given them [Russians] citizenship and look what they do – they steal our national treasures!”.  He felt that the persecution his girlfriend’s mother suffered in Latvia over this incident would certainly spill over to her family – her children and himself, as the intended son-in-law – if they returned to Latvia.’

And at p 10 of its reasons for decision the RRT says:

‘The applicant claimed that his future mother-in-law was reviled in the press and that the publication of her name, linking it with anti-Latvian behaviour, provoked Latvians to spit at her, assault her and otherwise abuse her.  The Tribunal was not able to read the press articles until after the hearing, owing to the tardiness with which they had been translated.  However, when it finally read the articles, it found that they did not offer this support.’

The RRT then proceeded to give individual consideration to the newspaper articles in question culminating in the conclusion which I have quoted in par 4 above.

21                  The RRT did not ‘ignore’ the articles in question.  It considered them, but came to the conclusion that they did not support the appellant’s claims.  In the circumstances, the RRT was entitled to come to that conclusion.

22                  The appellant informed me that the reference to his ‘ex-wife’ in par 18(ii) of the submission should have been to his present wife, and that the ‘evidence’ in question was contained in two letters from his adviser to the RRT.  The first is a letter of 30 August 2001 enclosing the protection visa application, and the second is a letter of 10 October 2002 providing articles published in the Latvian newspapers and certain additional information.  The hearing before the RRT took place on the following day.

23                  At p 4 of the RRT’s reasons for decision the following appears:

‘The applicant came to Australia in April 1998 accompanied by his two friends, a brother and sister.  The applicant is now engaged to the latter.  All three had student visas and all are currently applicants for protection visas.  The Tribunal, identically constituted, heard all three cases as each is based on the same claims and all applicants shared the same documentary evidence in support of their claims.  The two siblings, by choice, had their hearing together (cases N01/39254 and N01/39321.  This applicant, who had lodged his protection visa application seven months later than the other two, was heard separately some three weeks after the first two applicants: the Tribunal heard oral testimony from this applicant on 11 October 2002.  No decision was made about the first two applicants until the third case was heard; and the third applicant (the present case) submitted material (on behalf of the first two) which was to assist the Tribunal in consideration of all three cases.’

It is evident from this passage that the RRT considered the material produced in relation to the appellant’s wife’s claim and that of her brother.  At p 5 of its reasons for decision the RRT summarises the contents of the adviser’s first letter, and at p 8 the RRT describes ‘the submission’ made in the second of those letters.  There is no warrant for a conclusion that the RRT ignored these matters.

24                  It may be accepted that if the RRT had ignored relevant material, then it would probably have made a jurisdictional error.  However, the appellant has not established that the RRT did so.

25                  I turn then, to the specific grounds of appeal.

26                  There is no substance in ground (a) of the Notice of Appeal.  The Tribunal found, as a matter of fact, that any anti-Russian sentiment directed at the appellant’s family was on an individual and random basis which did not amount to persecution.

27                  Ground (b) misconstrues the Tribunal’s decision.  That decision included the following:

‘The applicant himself made no claims, nor does the evidence suggest, that he suffered harm (let alone amounting to persecution) for reason of his ethnicity (or any other Convention reason) before his departure from Latvia.  He made reference to a couple of run-ins with nationalist youth but said specifically it was not part of the reason he left Latvia.  His adviser originally made written claims about persecution on the grounds of race but the applicant did not follow these up at the hearing.  The independent evidence indicates that Russians in Latvia are not subject to persecution within the meaning of the Convention.  On the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of his race.’

28                  In relation to ground (c), the Tribunal is only obliged to consider the issue of State protection if it comes to the conclusion that the appellant has a well-founded fear of persecution for a Convention reason at the hands of persons other than the State or its agencies.  The RRT did not come to any such conclusion.  In any event, the RRT was satisfied that the appellant’s mother-in-law could access State protection, and that the State was neither unwilling nor unable to protect her.

29                  Ground (d) is entirely unparticularised.  It appears to be consequential upon one or more of the earlier grounds, none of which have been made out.  The appellant has not established a denial of natural justice on the part of either the RRT or the Federal Magistrate.

30                  The appeal should be dismissed with costs.

Associate:

Dated:              24 May 2005