FEDERAL COURT OF AUSTRALIA

SZJMT v Minister for Immigration & Citizenship [2008] FCA 278

SZJMT AND SZJMV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1981 OF 2007

JESSUP J

20 FEBRUARY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeals be dismissed.

2.                  The appellants pay the costs of the first respondent fixed in the sum of $2,000.00.

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

REASONS FOR JUDGMENT

1                     These are appeals from a judgment of the Federal Magistrates Court of Australia given on 19 September 2007 dismissing applications for judicial review of a decision of the second respondent, the Refugee Review Tribunal (“the Tribunal”), made on 29 August 2006 and handed down on 21 September 2006, by which the Tribunal affirmed an earlier decision of a delegate of the respondent Minister not to grant the appellants Protection (Class XA) visas pursuant to the provisions of the Migration Act 1958 (Cth) (“the Act”).

2                     The appellants are husband and wife who came to Australia from India on 19 March 2005.  According to the decision of the Tribunal the appellant husband claimed to fear persecution in India for reasons which were described as “politico-social and particularly religious beliefs.”  The appellant wife also sought a protection visa, but her grounds did not relate to her own circumstances as such; rather they were based upon the fact that she was a dependent of the first appellant. The appellant husband has represented himself in court today and has made it clear that his wife is aware of the hearing of this appeal, that her claims depend only upon being his dependant and that she does not wish to contribute to the appeal anything beyond what the husband appellant says in support of his own case.  In those circumstances, I shall deal with the appeals as though they relate to the circumstances of the husband, and shall refer to him as the appellant.

3                     In his application in the Tribunal, the appellant, who is a Hindu, claimed to fear persecution at the hands of other Hindus because, according to him, he refused to accept the sacredness of cows and he refused to be bound by any rules or conventions against the killing of cows and the consumption of meat from cows.  His claims also related to certain political activities in which he claimed to have been involved.  The case was decided against the appellant by the Tribunal largely on the ground that it did not accept the factual basis of the claims he made.  The Tribunal concluded that it did not accept that the appellant had a real chance of persecution either by reason of his religion, or views on religion, or by reason of his political opinion. 

4                     In his application in the Federal Magistrates Court, the appellant relied upon a number of grounds.  The first was that the Tribunal failed to apply the ‘real chance’ test, but instead opted for a balance of probabilities test.  As to that, the Federal Magistrate found that there was no evidence that the Tribunal failed to apply the real chance test, and noted that the Tribunal had in fact set out the real chance test in its decision.

5                     The second of the appellant’s grounds was that the Tribunal erred in adopting what was described as an unduly harsh approach to the well-founded fear.  As to that, the Federal Magistrate said that the contention was “no more than a challenge to the Tribunal’s factual findings” and noted that it was the Tribunal which was the finder of fact and the maker of judgments based on those findings of fact. 

6                     The third ground relied upon by the appellant was that the Tribunal failed to assess the harm from the perspective of the persecutor, instead assessing the harm from the perspective of the putative persecutee.   That might have been an intelligible ground for the application in the Federal Magistrate’s Court, were it not for the particulars provided in relation to it.  The appellant’s particulars were as follows: 

The Tribunal adopted a line of questioning designed to establish the harm from the perspective of the applicant persecutee asking why he would be harmed rather than addressing as to the motive that [the Tribunal member himself] may have in harming the applicant. 

As to that ground, the Magistrate said that he was unable to understand the claim and the particulars provided.  By contrast, I have been able to understand the claim articulated in this ground and I do so by paying no attention to the confusing particulars.  However, there is in my opinion no substance in it.  I have read the decision of the Tribunal.  It is quite clear that the Tribunal approached the issue of the reason for the allegedpersecution from the perspective of the person or persons who, according to the appellant, were doing the persecuting.  For example, one point the Tribunal said:

Thus, and though it again proved difficult to elicit the applicant’s relevant claims, the applicant agreed that he had only ever been physically harmed in January 2005 and he didn’t know who his assailants were (or their motives).

The reference to the motives of the assailants makes it clear that the Tribunal was directing itself to the reasons of those who, according to the appellant, were minded to do the persecuting. 

7                     In his fourth ground in the Federal Magistrates Court, the appellant alleged that the Tribunal had identified “the wrong issue; asked itself wrong question; failed to consider relevant material and relied on irrelevant material”.  This very broad ground was particularised by the contention that the “Tribunal erred in asking questions and relying only on the material the perspective of the putative persecute”.  Of this ground the Federal Magistrate said:

The Applicant claims that the Tribunal identified the wrong issue, asked itself the wrong question, failed to consider relevant material and relied on irrelevant material but provides no particulars of that whatsoever. Again there is a particularisation claiming that the Tribunal relied on material from the perspective of the putative persecutee but it is difficult to understand what this means and the Applicant was not able to enlighten the Court.

To the extent that this fourth ground is satisfactorily particularised, it appears to overlap completely with the third, and I likewise consider that the Federal Magistrate was correct in taking the view that there was nothing in it. 

8                     There was a fifth ground in the Federal Magistrates Court, very generally headed “Procedural Unfairness”.  In that ground it was alleged that, apart from common law procedural fairness, the Tribunal had failed to consider the appellant’s case in accordance with substantial justice and fairness.  It was said that the Tribunal failed to accord procedural fairness when it did not give the appellant the opportunity to provide further information which related to the appellant’s claim.  There was a reference to the presentation to the Tribunal of a copy of a medical reference letter and to the fact that the Tribunal had, according to the appellant, discarded that evidence and held it to be unreliable.  It was further alleged that, in making its decision, the Tribunal relied on information provided by the respondent Minister and did not take any account of the evidence presented by the appellant.  Of these broad procedural fairness matters the Federal Magistrate said:

There was also the complaint that the Tribunal did not provide the Applicant with procedural fairness. There is a reference to common law procedural fairness but it is well established by decisions such as Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 that common law procedural fairness is not a matter that the Tribunal needs to consider. Procedural fairness under the Migration Act is the matter that the Tribunal must consider.

The Applicant claims that the Tribunal did not give him the opportunity to provide further information about his claim.  The Tribunal considered that request but set out at page 86 of the Court Book why it was unwilling to agree to it and why it did not consider that that was necessary.  Of course it would have been open to the Applicant to make a post hearing submission in any event but this was not done and there was no further material for the Tribunal to consider. 

The claim that the Tribunal relied on information prepared by the Respondent Minister did not take into account any evidence presented by the Applicant.  It is not particularised, it is of course a matter for the Tribunal to decide what weight it will give to evidence.  The Applicant claimed to have suffered a head injury.  The Tribunal was not satisfied that this head injury accounted for the unsatisfactory nature of his oral evidence. 

In my view, the Applicant’s grounds alleging jurisdictional error have not been made out.

9                     In his Notice of Appeal in this court the appellant relies upon two broad grounds.  The first is that the Federal Magistrate failed to hold that the Tribunal made a jurisdictional error when it adopted a harsh approach to the matter of a well-founded fear.  It is alleged that the Tribunal failed to instruct itself by reference to the ‘real chance’ test, but resorted instead to the balance of probabilities test and other types of tests.  It is said that the Tribunal misapplied the express and implied meaning of the term “well-founded fear” and of the term “refugee”, as used in the Convention, especially in relation to the appellant’s fear of persecution from what were described as fanatic Hindu activists who did not want cows to be killed or beef to be eaten in the Indian state of Gujarat.  It is alleged that the Tribunal failed to assess the cumulative effects of separate incidents and attacks on the appellant which bore upon his claim for a protection visa.  In the second generally expressed ground of appeal the appellant alleges that the Tribunal took irrelevant matters into account, that it identified the wrong issue, that it asked the wrong questions, and that it ignored relevant material.  It is alleged that the appellant was denied natural justice and procedural fairness when the Tribunal did not provide extra time to forward more evidence in support of his claims. 

10                  The present proceeding is not the occasion for this appellant to agitate his concerns about the correctness of a decision made by the Refugee Review Tribunal.  The court which has the relevant primary jurisdiction is the Federal Magistrates Court, and even then it is a question not of whether the Tribunal was right or wrong, but of whether the Tribunal exceeded or failed to exercise its jurisdiction.  The grounds upon which the appellant relied both before the Magistrate and on appeal are very broadly expressed and appear to be, if I may so observe with respect to those responsible for drawing them, in the nature of an ample net thrown over the whole case in an attempt to catch any and every possible jurisdictional error.  Many of the allegations contained in the appellant’s grounds bear little relationship to the reality of the proceeding before the Tribunal.  To the extent that they were relevant, they were carefully and comprehensively dealt with by the Federal Magistrate, although there was one aspect of those claims which understandably in my respectful view, his Honour was not able to comprehend.  Even when that aspect is looked at in the light most favourable to the appellant, it provides no basis for a suspicion, much less for a conclusion, that the Tribunal constructively failed to exercise its jurisdiction.

11                  The appellant filed written submissions in support of his appeal, but they appear to do no more than to re-canvass questions of fact which were before the Tribunal or to agitate broad and non-specific claims about jurisdictional error.  Specifically, and importantly for present purposes, those submissions have not come to terms with the way in which the Federal Magistrate disposed of the appellant’s case.  Those submissions do not make good the proposition which is essential for the appellant in this court, namely, that the Federal Magistrate was in error in the way that he dealt with the appellant’s case. 

12                  In court this afternoon the appellant did not add to his written outline of submissions.  He said that that outline had been prepared with the assistance of his friends, and he claimed to have little understanding of the questions involved.  His case must, therefore, stand or fall upon his grounds of appeal, upon his written outline, and significantly upon the absence of any identified error on the part of the Magistrate in those grounds and in that outline.

13                  For those reasons I propose to dismiss the appeals.

Associate:

Dated:         7 March 2008