FEDERAL COURT OF AUSTRALIA

SZBYR v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1761

SZBYR AND SZBYS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1517 OF 2005

MADGWICK J

22 NOVEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal will be dismissed with costs, assessed in the sum of $3,500. 

REASONS FOR JUDGMENT

HIS HONOUR:

1                     This is an appeal from a judgment of the Federal Magistrates Court given by Federal Magistrate Raphael on 5 August 2005.  The appellants are husband and wife, and are citizens of India.  They arrived in Australia on 2 October 2002 and sought protection visas, claiming refugee status.  Their claims were rejected firstly by a delegate of the first respondent, and secondly by the Refugee Review Tribunal in a decision handed down on 6 November 2003.

2                     The appellants sought judicial review from the Federal Magistrates Court. The grounds on which the judicial review was sought were that: ‘the decision was affected by error of law and lack of procedural fairness’; that the decision was given in ‘bad faith’; that the decision was so unreasonable that no reasonable person could reach it; and that the Tribunal did not make any enquiry or collect any independent opinion prior to deciding the case; and that the Tribunal denied the appellants natural justice.

3                     In the Federal Magistrates Court there had been a direction that the respondent Minister should file and serve written submissions two working days before the hearing.  The appellants had served their submissions on 16 March 2005 and the hearing had been fixed for 27 April 2005, but which apparently, for some reason, did not actually occur until 5 August 2005.

4                     The Minister’s submissions were in fact served on 4 August 2005.  The appellants sought an adjournment of the hearing because of the late service of the Minister’s submissions.  They claim that such late service put them at a disadvantage because they had insufficient time to obtain legal advice.  The Federal Magistrate said, ‘I did not believe that the default in the Minister complying with the orders of the Court by one day really affected the applicant’s ability to have previously obtained legal opinion’.  I understand this to mean that the default did not in reality affect their ability to obtain legal opinion on the Minister’s submissions before the actual hearing, had the appellants seriously wished to obtain such opinion.  The learned Magistrate pointed out that it was not a case where it was alleged that a legal adviser had indicated that he or she could not provide advice on the Minister’s submissions in the short time available. 

5                     In addition, the Magistrate considered that as the essential reason for the Tribunal’s decision was that, on the appellants’ own story, such harm as they might fear was not for any Convention reason; if there were any ‘technical breaches of the Tribunal’s duty not to fall into jurisdictional error, it would not outweigh that one important point’.  I understand this to have been an effort to say any criticism of the Tribunal arising from s 424A of the Migration Act 1958 (Cth)is not a valid ground for review in this case for the central reason that the Tribunal Member’s decision was unaffected by any information to which s 424A might have applied.  Read charitably, and thus understood, it does not seem to me that the learned Federal Magistrate misunderstood the principles which should guide his discretionary decision to adjourn or not adjourn the case, nor did he mistaken any question of fact or law, nor was his decision such that, on its face, it would indicate a misapplication or misunderstanding of relevant principles.  The fact is that the appellants had had many months to consider their position and to obtain legal representation and advice if they had wanted to do so.  Criticism of the learned Magistrate is one of the areas of dissatisfaction that the

appellants have orally submitted they wish to raise in this Court.  The attack on the Federal Magistrate’s decision on that score fails.

6                     The second matter that the appellants indicated orally they wish to raise concerned a supposed misunderstanding or misapplication of legal criteria as to whether, on the facts found by the Tribunal, the appellants feared persecution for a Convention reason.  The Tribunal Member appears to have accepted that the appellants follow a version of Islam which among other things apparently involves being ‘followers of the Aga Khan’.  The appellant husband had previously been married to a woman called Salima whose family adhered to a version of Islam different from that of the appellants.  His first wife’s family disapproved of him on religious grounds and apparently also on grounds of social status.  After various incidents of claimed harm at their hands, and with the concurrence of her family, he divorced his first wife and then married the female appellant.  The first wife suicided in 2001 whereupon, after a considerable period of peace from her family, the family blamed the appellants for her death, apparently feeling that the male appellant had somehow upset her to the point where she took her own life.

7                     The Tribunal member took the view that:

‘The evidence before me is to the effect that the difficulties arose because Salima’s family did not approve of the relationship between the applicant husband and Salima, and later held the applicants responsible for her suicide.  I accept that the religion of the applicant husband as a follower of the Aga Khan may have been a factor in why Salima’s family did not approve of the relationship.  I also accept that a difference in social status may have also been a factor in Salima’s family’s animosity to the relationship.  However, this does not mean that the reason for the adverse interest which the applicants fear now and in the future is owing to their religion or social status.  The evidence before me indicates that it is the death of Salima which reactivated the interest of Salima’s family in the applicant husband and by association his wife.  The applicant husband’s evidence is that after he had divorced Salima he had no further difficulties with her family.  It was Salima’s suicide which renewed his fear of harm at the hands of her family.  Indeed the applicant wife was of no interest to the claimed protagonists at all until Salima’s suicide.

Taking into account all the evidence before me, I am satisfied that the applicants are involved, or have been involved, in a personal dispute and there is no Convention nexus.  The applicants are not being targeted for reason of their religion even though the claimed protagonist, the father of the applicant husband’s first wife – is not a follower of the Aga Khan.  Nor are the applicants being targeted for reason of membership of a particular social group constituted by social status.’

8                     There has been no explanation before me of how the Tribunal Member legally erred or misunderstood the Convention criteria in arriving at this view, nor do I discern any error myself.  As far as the second ground of attack upon the Federal Magistrate’s decision is said to have been constituted by the learned Magistrate’s failure to discern such legal error, it must also fail.

9                     I have concentrated on the oral complaints made by the appellants because, apart from a brief reference to the complaint about the Magistrate not granting an adjournment on account of the Minister lodging submissions one rather than two days prior to the hearing, the notice of appeal to this Court is couched in such generalities as to be useless.  That notice was filed on 26 August 2005.  Two months later on 28 October 2005 written submissions running to 11 pages were filed.  These appear to have been prepared by a person with a knowledge of the law sufficient only to constitute the author a danger to anybody who might deal with him or her.  Most of the written submissions proceed as if this were a case where the authenticity of documents was a key element in the decision.  Most of the submissions concern themselves with questions of the authenticity of documents and with how supposedly the Tribunal handled that issue.  There was no such issue in the case at all.  Most of the submissions have therefore nothing at all to do with this case.  They do not at all deal with the second point that the appellant wishes to raise nor do they otherwise suggest any legal error.  The male appellant improbably suggested that the notice of appeal and the written submissions were prepared by the same person who had on a single occasion devoted the only two hours he could find to the matter before his return to India.  Whatever the truth of that, the case simply appears to be devoid of legal merit.  

10                  The appeal will be dismissed with costs, assessed in the sum of $3,500.

Associate:

Dated:              7 December 2005