FEDERAL COURT OF AUSTRALIA

SZDEM v Minister for Immigration and Multicultural Affairs [2006] FCA 1364

SZDEM, SZDEN AND SZDEO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

1215 OF 2006

MOORE J

20 OCTOBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The first and second appellants pay the first respondent's costs.

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

REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of a Federal Magistrate of 2 June 2006. The Federal Magistrate dismissed with costs an application for judicial review of a decision of the Refugee Review Tribunal of 19 February 2004 and handed down on 11 March 2004. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant the appellants protection visas.

2                     The appellants are a married couple and daughter. Only the first appellant (who is referred to as the appellant) made specific claims under the Refugee Convention. The litigation history of this matter appears at [10] of the Federal Magistrate's reasons. The appellants filed an application in the Federal Magistrates Court on 2 April 2004. On 8 June 2004, a Federal Magistrate ordered the appellants to file and serve an amended application by 20 July 2004. An amended application was handed up at a directions hearing after that date. On that occasion, a Federal Magistrate ordered the appellants to file a further amended application by 19 November 2004 containing at least one asserted jurisdictional error and complete particulars. An order was also made that if the first order was not complied with, the Minister could apply to chambers for dismissal of the matter without further reference to the appellants. On 13 December 2004, a Federal Magistrate dismissed the application pursuant to Rule 13.03(2)(b) of the Federal Magistrates Rules, on application by the Minister. The appellants subsequently sought an extension of time within which to seek leave to appeal from the Federal Magistrate's decision to this Court. That application was dismissed by Stone J on 3 March 2005, on the basis that there was virtually no chance of succeeding in any appeal: see SZDEM & Ors v Minister for Immigration and Multicultural Affairs [2005] FCA 167. An application for special leave to appeal to the High Court was dismissed on 1 August 2005: see SZDEM & Ors v Minister for Immigration and Multicultural Affairs [2005] HCATrans 470. On 29 August 2005, the appellants applied to the Federal Magistrates Court for review of the Tribunal's decision, under s 39B of the Judiciary Act 1903 (Cth). This appeal is from the Federal Magistrate's judgment dismissing with costs that application.

3                     The notice of appeal was filed in this Court on 23 June 2006. The Minister has submitted that since the first application in the Federal Magistrates Court did not proceed to argument on the merits, the appellants were not precluded from raising any issue in the second application to the Federal Magistrates Court. The Minister did not contend the second application was an abuse of process as the Federal Magistrate's judgment of 13 December 2004 was interlocutory in character. The Minister has adopted the position that it is desirable to secure final judgment in this Court.

The appellant’s claims for protection

4                     Before the Tribunal, the appellant claimed that he was approached by terrorists who wanted to take advantage of his audio cassette business by threatening him. They wanted him to record and distribute their speeches and lectures. The appellant said he refused their demands and in December 2000 his family was attacked by the terrorists and his younger daughter was killed. In April 2001, the appellant’s father had been kidnapped, and in May 2003 the appellant was attacked by terrorist organisations and hospitalised. The appellant claimed he was persecuted, as an aspect of the terrorists' conduct, because he is a convert from Sikhism to Hindu.

The Tribunal's decision

5                     The Tribunal did not accept that the appellant and some of his family were targeted for the reasons claimed. The Tribunal did not consider the appellant to be a credible witness. It viewed his evidence as implausible and inconsistent.

The Federal Magistrate's decision of 2 June 2006

6                     The appellant challenged the Tribunal's decision on several grounds in the proceedings below. Those grounds were:

             ·                    the Tribunal was wrong in stating that the appellant gave oral evidence that only his father was hit during the terrorist attack on his family;

             ·                    the Tribunal member was biased as shown by her statement that the anonymous and confidential letter confirmed its opinion regarding the appellant’s daughter’s death formed before receiving that letter;

             ·                    the Tribunal took account of irrelevant facts and misunderstood the facts regarding appellant’s deceased child;

             ·                    the Tribunal failed to consider the additional reasons given by the appellant for refusing to work for the terrorists namely that the terrorists wanted Hindus to fight against Hindus;

             ·                    the appellant was a victim of systematic torture and the Tribunal incorrectly interpreted the term refugee in his case; the Tribunal’s finding of adequate state protection was not correct and it used independent country information that was incorrect as well as failing to consider the Amnesty International report;

             ·                    the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction when it asked itself the wrong question;

             ·                    the Tribunal did not consider appellant’s oral evidence and denied him procedural fairness by not allowing him to produce oral witnesses; and

             ·                    the Tribunal misunderstood the appellant’s claims when it separated the appellant’s religion claims from his recording business claims.

7                     The Federal Magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, concluded that in the absence of a transcript or affidavit it was not possible to find that the Tribunal misconstrued or wrongly set out the evidence given by the appellant. However, his Honour commented that the Tribunal did seem to have misunderstood the facts advanced by the appellant when it made findings about the appellant’s deceased child being illegitimate. His Honour considered that the distinction between failing to deal with the appellant’s evidence and failing to deal with appellant’s claim, concluding that a failure to deal with a claim would amount to jurisdictional error whereas failure to deal with the appellant’s evidence invited merits review (citing WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [41] to [47]).

8                     In relation to the appellant’s claim that he was denied the opportunity to take oral evidence from witnesses the Federal Magistrate concluded that the appellant had declined the statutory opportunity provided by s 426 of the Act and the hearing invitation, and that there was no provision equivalent to s426 of the Act providing for an appellant to ask for a witness at later stages. His Honour concluded that the Tribunal had given consideration to appellant’s request to provide oral witness concerning his daughter’s death date and had given its reasons for declining that request, stating “but the only ‘witness’ is his brother in-law’s statutory declaration”.

9                     The Federal Magistrate did not accept that the Tribunal prejudged the appellant’s case, as even if the Tribunal had formed a relatively firm view at an early stage, it did not follow that it was biased in the relevant sense. His Honour noted that the Tribunal did not accept the appellant’s claims. It therefore did need to consider whether the harm claimed by the appellant was for a Convention reason. His Honour concluded that the Tribunal’s analysis of the appellant’s claim was also completely consistent with the way the appellant had presented his claims regarding religion. Further, the Tribunal had decided that State protection and the possibilities of relocation were sufficient to find that the appellant was not owed protection.

The grounds of appeal

10                  The notice of appeal raised the following grounds:

         1.             the Federal Magistrate failed to find an error of law;

         2.             the decision of the Tribunal was affected by an error similar to that identified by the High Court in Muin v Refugee Review Tribunal & Ors (2002) 190 ALR 601; and

         3.             The appellant also claimed that the Tribunal did not follow proper procedures as required by law.

During the hearing of this appeal the appellant also submitted that there was a contradiction between the Tribunal decision and the decision of the delegate.

The Minister's submissions

11                  Generally, the Minister submitted that the amended application filed in the Court below challenged with the correctness or cogency of some of the Tribunal’s factual considerations and as such did not raise issues capable of leading to the Tribunal decision being set aside by that Court. In relation to ground one of the appeal, it was submitted that the ground was a generalised assertion unsupported by particulars to the extent that it sought to assert one or more of the grounds pleaded in the amended application before the Federal Magistrate.

12                  The Minister submitted that the Tribunal had made four adverse findings in relation to the appellant and that he would have to successfully impugn all of those findings. First, the Tribunal concluded that the principal claims that the appellant made were simply not true. The appellant in that respect referred to the delegate's decision where the principal claims that he made were accepted and it is not open to the appellant now as it was not open to the court below to challenge those factual decisions simply on the basis that those decisions or conclusions were wrong. Secondly, the reasons that the appellant had suffered and feared harm was not Convention related but a response to his refusal to perform a service for the terrorists. The third basis was that the appellant’s family would not be denied adequate state protection and the fourth was that that the appellant and his family could relocate within India. The appellant to date had not been able to identify a single jurisdictional error in relation to the Tribunal's decision and his written submissions filed on 3 October 2006 in substance again sought to take issue with factual matters.

13                  The Minister submitted that the second ground raised a new matter and that the appellant ought not be given leave to raise it circumstances where the appellant has now had a number of opportunities to plead such a ground. In any event, it was submitted that the ground lacked substance. The appellant sought to utilise the findings of fact in Muin, yet in his case, there were no agreed facts of the type that were considered in Muin. Further, no attempt had been made by the appellant to identify and make out the elements of a denial of procedural fairness case of the kind considered in Muin. In relation to the third ground, the Minister submitted that the appellant ought not to be allowed to raise this ground either in circumstances where it was not raised in the Federal Magistrates Court. Additionally, it was submitted that the ground has no prospects of success because it was unsupported by evidence and entirely devoid of substance. I agree that the appellant ought not be allowed to raise the second and third grounds of appeal in these proceedings, and that in any event, he could not succeed on such grounds in the circumstances.

14                  I have read the decision of the Tribunal and the judgment of the Federal Magistrate. It is not apparent to me that the Federal Magistrate erred in dismissing the appellant's application. The appeal should be dismissed, with costs.

Associate:

Dated: 20 October 2006