FEDERAL COURT OF AUSTRALIA

SZGPZ v Minister for Immigration and Multicultural Affairs [2006] FCA 683

SZGPZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & REFUGEE REVIEW TRIBUNAL

NSD 328 OF 2006

COLLIER J

26 MAY 2006

BRISBANE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal is dismissed.

2.         To the extent that leave to appeal to this court was required to hear the appeal - leave to appeal is refused.

3.         The appellants are to pay the costs of the first respondent.

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                     This is an appeal from a judgment of Emmett FM of 14 February 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 December 1997.  The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant protection visas to the appellants.

2                     The appellants are husband and wife and two of their children, and are citizens of Fiji.  Their claims for refugee status are based on the appellant husband’s claims of persecution.  His claims of persecution are based on his ethnicity and religion.  He claimed that as an ethnic Indian living in Fiji after the 1987 political coup, indigenous Fijians attacked his shop, beat him and harassed and threatened his family.  The first appellant attended a Tribunal hearing.

3                     The Tribunal accepted that the appellants may have suffered some difficulties after the coup as claimed, however it concluded that such treatment was the result of ordinary criminal conduct.  It noted that the only serious incident experienced by the appellants was motivated by criminal behaviour and was dealt with by the authorities.  The Tribunal found, on the evidence before it, that the first appellant did not in the past experience ill treatment of a level severe enough or systematic enough to constitute persecution, and that the Fijian authorities had provided effective protection to the appellants in respect of their complaints.  The Tribunal concluded that the first appellant did not face a real chance of persecution in the reasonably foreseeable future were he to return to Fiji.

4                     Before the Federal Magistrate the appellants claimed that the Tribunal:

·            failed to provide independent country information to the appellants prior to the Tribunal hearing as it was information with which the appellants were not familiar,

·            used that information in a biased way,

·            erred in the application of a test in relation to its relocation finding, and

·            failed to consider whether the first appellant was a member of a particular social group, being owners of “vulnerable” businesses that were persecuted.

5                     The appellants also made general complaints about the factual findings made by the Tribunal.

6                     The respondent Minister submitted that there was an unwarrantable delay of seven years from the time the Tribunal made its decision to the date the appellants commenced their application in the Federal Magistrates Court.

7                     The Federal Magistrate rejected the appellants’ grounds on the basis that they were misconceived and they could not be made out on the evidence before her, and that none of the grounds raised by the appellants had sufficient prospects of successfully identifying jurisdictional error in the Tribunal decisions.  Furthermore, the Federal Magistrate, having regard to the length of the delay in filing their application and the inadequacy of their explanation, refused to grant discretionary relief to the appellants.

8                     By a Notice of Appeal filed on 20 February 2006, the appellants claim that the Federal Magistrate:

·            should have found that the respondents were estopped from relying on delay as a ground of response to the appellants’ application,

·            denied them natural justice by allowing the respondents to raise delay as a ground of response,

·            erred in finding that the period of communication with the respondent Minister pursuant to s 417 of the Migration Act 1958 (Cth) (“the Act”) did not constitute sufficient explanation for the delay,

·            should have found that the Tribunal breached the rules of natural justice in connection with the making of its decision and denied procedural fairness in relation to the decision,

·            was biased and did not exercise the powers authorised by the Act,

·            misconstrued the test in relation to persecution and harm, and erred or misapplied the test in relation to the Convention reason,

·            failed to apply the test of social class in relation to the claim, and/or

·            erred in finding there was effective state protection.

9                     Before me in court yesterday morning, counsel for the Minister drew to my attention some minor anomalies in the Court Appeal Book and its contents.  These anomalies arose from the inclusion of an affidavit which had not been read into the transcript before Emmett FM and ought not to have been included.  As a result, the parties before me yesterday morning agreed that, for the purpose of the Appeal Book, the affidavit of Mr Rizarum dated 4 November 2005 and listed as item 3 in the appeal book was removed from the book.  Included in the appeal book are pp 12-16 of the transcript of evidence before her Honour, Emmett FM, and two affidavits, one of Ritesh Sharma dated 30 January 2006 and one of Elizabeth Warner-Knight dated 31 January 2006.  I note these amendments for the record.  They do not impact on my decision in this case.

10                  The appellants were not legally represented by counsel before me yesterday morning.  An interpreter was present in order to translate the proceedings into Hindi.  The appellants made no formal submissions orally but indicated that they would rely on their written submissions.  The first appellant, through the interpreter, stated at the end of the hearing that he wished to remain in Australia, he had nowhere to live in Fiji, and he was afraid of being killed if he returned to Fiji.

11                  The Minister, both in writing and through counsel at the hearing yesterday morning, submitted that, as the learned Federal Magistrate’s decision was ultimately that the application should be dismissed on discretionary grounds, the judgment was an interlocutory judgment and therefore the application should be treated as an application for leave to appeal.  This is required by s 24(1A) Federal Court of Australia Act 1976 (Cth) which provides:

            An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the court or judge gives leave to appeal.

12                  Section 24(1) includes judgments of the Federal Magistrates Court.

13                  The test for whether a judgment is final or interlocutory was discussed by the High Court in Re Luck (2003) 204 ALR 1 at 2, where McHugh ACJ and Gummow and Heydon JJ said:

            As McHugh, Kirby and Callinan JJ stated in Bienstein v Bienstein, the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them.  That question is answered by determining whether the legal effect of the judgment is final or not.  If the legal effect of the judgment is final, it is a final order.  Otherwise, it is an interlocutory order.

14                  In Re Luck, the order appealed against was an order of Gleeson CJ refusing to grant leave to issue process and was an interlocutory order.  The Court observed that the order did not finally determine Ms Luck’s rights against the various defendants, if she had any such rights, as it did no more than refuse leave to serve the process the subject of the direction on the defendants.  Yesterday morning before me, Counsel for the Minister submitted that the order of Emmett FM whereby her Honour refused to grant the orders sought by the appellants which were in the nature of discretionary relief, was interlocutory.  Her Honour herself said in her judgment at para 76 that her order did not encompass determining the applicants’ claims of jurisdictional error in the Tribunal’s decision.

15                  I am inclined to agree with the submissions of Counsel for the Minister on this issue.  However, in fairness to the appellants, I propose to consider the merits of their appeal and to revisit the issue of leave to appeal at the end of this judgment.

The appeal

16                  There is considerable overlap in the grounds of appeal of the appellants, as the appellants themselves indicate in their submissions.  I shall endeavour to deal with the grounds of appeal under the same broad headings used by the appellants in their written submissions.

Delay

17                  The appellants state that they commenced proceedings in the Federal Magistrates Court following the outcome of what they described as “the last s 417 application becoming known”.  They also state that the Minister did not object to their application on the issue of delay until the Minister served submissions on them shortly before the hearing before the learned Federal Magistrate.  The appellants submit that in allowing the Minister to raise this issue so late in the proceeding, her Honour erred in law.  They also state that the period of the delay in the circumstances and the particular danger they faced provides a reasonable explanation for the delay.

18                  Section 417 of the Act allows the Minister, if he or she thinks it is in the public interest to do so, to substitute for a decision of the Tribunal a decision more favourable to the applicants.

19                  I see little merit in the submission that the Minister did not object to the appellant’s application on the issue of delay until the Minister served submissions on them shortly before the hearing.  The appellants were represented by counsel before her Honour.  It appears from the judgment of her Honour that pre-hearing orders were made by consent on 26 July 2005 and that the appellants filed an amended application several months thereafter on 2 November 2005, with lengthy and detailed written submissions being filed and served on 4 November 2005.  The opportunity of the Minister to file and serve written submissions in response to the submissions of the appellants were therefore clearly subject to the timetable as influenced by the actions of the appellants.

20                  In any event, the Minister raising the delay of the appellants in commencing proceedings should hardly have been a surprise to either the appellants or their legal representatives.  Overall, there had been a period of seven years between the handing down of the Tribunal decision and the commencement of the action in the Federal Magistrates Court.  The appellants were seeking discretionary relief and there is ample authority that the court ought have regard to delay in deciding whether to grant relief.  Delay was an obvious issue.  If the appellants had felt prejudiced by the Minister raising the issue of delay in his submissions, it would have been open to them to seek an adjournment of the hearing before her Honour.

21                  The issue appears, in any event, to have been fully argued by both parties before Emmett FM, as indicated in her Honour’s judgment.  Indeed, it is an issue which could reasonably have been expected to have been raised by her Honour herself in the context of the exercise of her discretion as sought by the appellants, even if the Minister had not made submissions on this point.  As pointed out by McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at 185:

            Issues including delay, waiver, acquiescence and unclean hands are all aspects of the conduct of a party which could properly warrant the refusal of the court to exercise its discretion in their favour.

22                  Hayne J at p 212 made similar observations.

23                  The need to expedite prosecution of prerogative writs in appropriate circumstances was clarified by Lord Diplock in O'Reilly v Mackman [1983] 2 AC 237 at 280-281 where his Lordship said:

            The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in the purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.

24                  In my view there was no issue of procedural unfairness or denial of natural justice in her learned Federal Magistrate entertaining submissions in relation to the issue of delay in commencing proceedings.

25                  In relation to this point however the appellants also submit that there was a reasonable explanation for the delay in commencing an action before the Federal Magistrates Court.  They point out that during this time they had been endeavouring to make requests of the Minister to exercise the discretion in s 417.  Further, in August 1998, the appellants had instructed Adrian Joel and Company, solicitors, and had joined as plaintiffs in proceedings before the High Court.

26                  The appellants have directed my attention to the decision Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 195.  Finkelstein J in that case accepted the s 417 explanation of the applicants in similar circumstances to those before me.  However there are also a number of other cases where a contrary decision was reached involving similar submissions.  I note, for example, the Federal Court decisions in Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 576 (von Doussa J);  Applicant M29 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 1266 (Weinberg J); and a Full Court decision in M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293.  I note in particular comments of Weinberg J in Application M29 of 2001 where his Honour said at para 12:

            There was nothing to prevent the applicants from pursuing their application for constitution writs in the High Court while, at the same time, seeking ministerial intervention.  The absence of any adequate explanation would, of itself, be sufficient to refuse the application for an extension of time.

27                  In the end her Honour looked at two periods of delay, namely between December 1997 and August 1998, and February 2004 and July 2005.  It appears from the Transcript of the proceedings before her Honour that this was after considerable discussion of periods of delay during the hearing.  Her Honour characterised these as significant periods of delay that required explanations beyond merely the lodging of s 417 requests.  It is clear that, on the facts of this case, her Honour was not satisfied with the explanations which were provided for the delay.

28                  It is also clear that her Honour had regard to the merits of the case in reaching her decision that the nature of the delay did not warrant the exercise of discretion on her part.

29                  In my view neither the appellant’s notice of appeal nor the submissions disclose any error in the judgment of her Honour.

Denial of natural justice/procedural unfairness

30                  The appellants in their submissions have claimed:

1.         The Tribunal acted in denial of nature justice by relying on country information and failing to check whether the applicants were familiar with the material.

2.         The Tribunal should have provided the country information to the appellants in line with the SZEEU case.

31                  This was an issue raised before her Honour.  The allegation in the notice of appeal appears to be a repeat of a ground of review before her Honour.  Her Honour noted at para 50 of her judgment, that the Tribunal had put the independent country information to the first applicant during that hearing and dealt with this issue in the following terms at paras 51 and 52:

            The authorities have made it clear that it is a matter for the Tribunal to inform itself with independent country information it feels is relevant and it is a matter of fact the use of that information by the Tribunal.  The question of the accuracy of country information is one for the Tribunal and not for the court, as is the weight given by the Tribunal to that country information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 10 at 11 and SZANK v Minister for Immigration and Multicultural Affairs (2004) FCA 1478, Hely J, at 16).

There is no apparent jurisdictional error with any reasonable prospects of success raised by that ground.

32                  In my view, this aspect of her Honour’s decision demonstrates no error.

Apprehended bias

33                  It is claimed by the appellants that the learned Federal Magistrate ought to have found that the Tribunal was biased because the Tribunal appeared to debate the issues from its perspective, as was evident from reading the totality of the decision and the way the Tribunal debated issues with the applicants.  The appellants further submit that this demonstrates that the Tribunal approached the case with, overall, a prejudiced mind and a preconceived notion of the outcome.

34                  The issue of bias in the Tribunal was raised before her Honour.  Emmett FM was of the view that there was nothing readily apparent or identifiable from the Tribunal’s decision, or the particulars referred to in the further amended application, that would readily satisfy this serious test of actual bias, or that there was a reasonable apprehension of bias on the part of the Tribunal.

35                  Her Honour commented that the Tribunal is entitled and required to assess the evidence and attach such weight to that evidence as it regards is appropriate.  Her Honour also noted that reasons given by a tribunal are usually more than sufficient to rebut a claim of bias or lack of good faith and referred to SBBA v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 90 at para 15.  In this case the Tribunal gave comprehensive reasons for its findings in respect of the applicants’ claims, as pointed out by her Honour at para 55 of her judgment.

36                  I agree with the comments of Emmett FM in this regard.  At para 15 of SBBA, the Full Court of the Federal Court said in relation to an allegation of bias in that case:

            The Tribunal is entitled to assess the evidence and attach such weight to that evidence as it regards is appropriate.  Even were the Tribunal to disbelieve every element of the appellant’s claim (and it did not), it would not be sufficient to establish bias.  Bias or lack of good faith requires much more.  It requires that the decision-maker had prejudged the matter, and that he or she had a mind closed to any argument in support of a contrary conclusion: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134.  Such allegations must not be lightly made: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36, per Brennan J.  They also must be firmly and distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 530, per Gleeson CJ and Gummow J.  In this case the Tribunal carefully examined the claims made by the appellant and explained why it did not accept those claims.  Whether this court or the primary judge would have come to the same conclusion is not relevant.  The reasons for its views given by the Tribunal are more than sufficient to rebut a claim of bias or lack of good faith.

37                  The same comments apply to the case before me.

38                  In making an allegation of bias in the terms in which it is framed, it also appears that the appellants have misconceived the role of the Tribunal.  McHugh J, in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at 176, explained the function of the Tribunal as follows:

            The main purpose of the division is to accord procedural fairness to applicants in determining whether a decision of the Minister or the Minister's delegate should be affirmed.  The Tribunal is the vehicle through which this purpose is affected.  The Tribunal is empowered to use an inquisitorial process to conduct the review of the decision.  The division does not provide for an adversarial contest that culminates in a trial of issues drawn between the parties.

39                  Questioning the applicant, inquiring into the case before it which the appellants have termed “debating the issues”, are proper aspects of the inquisitorial role filled by the Tribunal.

Persecution/nature of harm

40                  It is apparent from the reasons for decision of the Tribunal that it gave careful consideration to the issue whether the appellants had a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion” as is stated in Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol.  The appellants have argued that the Tribunal “misapplied the test/asked incorrect questions in assessing the harm” constituted by persecution.  In particular, the appellants say that the Tribunal in classifying the assaults on the first appellant which required hospitalisation as “minor incidents of racial violence” the Tribunal had misapplied the relevant test of what constitutes persecution.

41                  The learned Federal Magistrate referred to the decision of Jacobson J in SZBOV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1407 and said that the issue of persecution was an issue of fact for the Tribunal.  Jacobson J said in that case at paras 19 and 20:

            As counsel for the Minister submitted, whether conduct is sufficiently serious to constitute persecution is an issue of fact and degree for the Tribunal alone: Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at 269 and 271; Minister for Immigration and Multicultural and Indigenous Affairs v Kord (2002) 125 FCR 68 at 3 and 56; Das v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 229 at 23-24; VDAU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 32 at 24; and Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 215 ALR 733 at 51-52.

I accept Mr Riley’s submission that the learned Federal Magistrate correctly held, at 24 that the question of whether discriminatory behaviour amounted to persecution is ultimately a question of fact and degree for the Tribunal.  In my view, no error is established in her Honour’s conclusions.

42                  In my view, the comments of Jacobson J, and Emmett FM in the Court below me, represent the law.  Whether or not the appellants have experienced persecution is an issue of fact for the Tribunal.  I do not treat lightly the feelings or genuine concerns of the appellants in this regard.  However, it is not evident to me that the Tribunal has erred in law in reaching the conclusion that the appellants have not experienced persecution.

Relocation

43                  The appellants referred in their submissions to a comment from the decision of the Tribunal as follows:

            I note the applicant’s claim that after he left his residence in 1987 it was taken over by the indigenous landowners, who apparently resumed the entire holding leased by the applicant’s uncle after his departure from Fiji.  However unfortunate it may be that, as a consequence, the applicant was forced to move between the houses of different relatives over a period of almost 10 years, and that he may be placed in a similar position upon his return to Fiji ...

44                  The appellants say that in so commenting, the Tribunal raised the issue of relocation.  What the appellants omit from their submission is that the observation of the Tribunal continued after the word “Fiji” as follows:

            ... a decision by landowners to resume land after the departure of the leaseholders cannot, in my view, possibly be considered to be persecution.

45                  The Tribunal, in making this comment, was not considering the issue of relocation or whether it would be reasonable for the appellants to relocate in Fiji.  The comment was made based upon evidence provided by the appellants, in the context of whether there had been persecution.

46                  I agree with Emmett FM that no jurisdictional error is raised by this ground of appeal or the submissions of the appellants.

State protection, Convention reason and social class

47                  The submissions of the appellants under this heading are somewhat repetitive and overlapping, and can be summarised as follows:

1.         As the owner of a vulnerable business, the appellant was of a “social class”, and that the Tribunal erred in not recognising this.

2.         The Tribunal erred in assuming that the effective state protection has to be for a Convention reason.

3.         The Tribunal erred in its inquiries in attempting to find a Convention reason in a persecution alleged to have happened in the circumstances where non-State agents were involved.

48                  It appears that similar contentions were raised before Emmett FM.  Her Honour held in relation to these points:

1.         There was no other evidence raised by the appellants to suggest that there was such a class who was being persecuted for a Convention reason.  Indeed, the Tribunal found that the conduct suffered by the first appellant was conduct of a criminal nature and otherwise had no Convention character.

2.         The second point appeared to cavil with the findings of fact of the Tribunal that any persecution of the first appellant was not for a Convention reason, and was not something within the jurisdiction of the court.

3.         The third point again raises the issue of criminal conduct as distinct from Convention-related persecution.

49                  I find no fault in her Honour’s findings on these issues.

SZEEU issue

50                  The appellants have complained in their submissions that the Tribunal states:

            I have noted the applicants’ concerns about the reliance of the delegate on the information contained in the country reports.  I have also relied on evidence set out in those reports and it is appropriate that I do so.

51                  The appellants have claimed that the Tribunal erred in relying on information looked at by the delegate, and have said that, in doing so, the Tribunal acted in breach of s 424A of the Act.  The appellants did not raise this issue in their notice of appeal, and have sought my leave to raise it.  I give them leave to raise the issue, however in my view the issue has no substance because:

1.         As pointed out by the Minister in his submission, s 424A Migration Act had not been enacted in this application as decided by the Tribunal and, therefore, has no application.

2.         In any event, even if s 424A had been enacted, it is not obvious to me how it would have been breached here.  The rest of the relevant sentence in the decision of the Tribunal, omitted from the submission of the appellants is as follows:

... as I am satisfied that the country reports constitute an accurate and objective assessment of current conditions in Fiji.

52                  I have already adverted to country information earlier in this judgment, and noted that it is a matter for the Tribunal to inform itself of independent country information it feels is relevant.  The use of that information by the Tribunal is a matter of fact.  If both the delegate and the Tribunal looked at available country information, I do not see this as in breach of s 424A.

conclusion

53                  In my view, no error appears in the decision of her Honour.  In any event, I note that the decision of her Honour overall was in exercise of her Honour’s discretion.  Dixon, Evatt and McTiernan JJ in the High Court of Australia in House v R (1936) 55 CLR 499 said at pp 504-505:

            The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It does appear that some error has been made in exercising a discretion.

54                  These comments are equally applicable to the case before me.

55                  Before proceeding to judgment however I make note that, while it is of no moment to this decision, this family appears to have been in Australia for over 10 years, presumably participating in and contributing to Australian society.  In the circumstances, one must tentatively question the policy benefits to Australia in requiring them to return to Fiji after such a long time in this country.  However, this is an issue for the Minister and forms no basis of this decision or any part thereof.

56                  Earlier in the judgment, I considered whether it was necessary to grant leave to the appellants to appeal from the judgment of her Honour, on the basis that it was an interlocutory judgment.  I have considered the substance of the appellants’ case, and find that it has no merit, and accordingly, it would be appropriate to refuse leave to appeal.

57                  Accordingly, I make the following orders:

1.         The appeal is dismissed.

2.         To the extent that leave to appeal to this court was required to hear the appeal, leave to appeal is refused.

3.         The appellants are to pay the costs of the first respondent.

Associate:

Dated:              2 June 2006