FEDERAL COURT OF AUSTRALIA

SZKUP v Minister for Immigration & Citizenship [2008] FCA 284

SZKUP AND SZKUQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1899 OF 2007

JESSUP J

18 FEBRUARY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the costs of the first respondent fixed in the sum of $3,000 such costs to be paid on or before 18 August 2008.

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 from a judgment of the Federal Magistrates Court of Australia, given on 6 September 2007, dismissing applications for judicial review made by the appellants in relation to a decision of the Refugee Review Tribunal (“the Tribunal”), signed on 7 May 2007 and handed down on 24 May 2007, by which an earlier decision of a delegate of the respondent Minister not to grant the applicants Protection (Class XA) visas under the Migration Act 1958 (Cth) (“the Act”) was affirmed. 

2                     The appellants are husband and wife and came to Australia from India, the country of their nationality.  Only the appellant husband claimed to have Convention‑related grounds for the grant of a protection visa under the Act.  The claims of his wife, the second appellant, were based upon the circumstance that she was and is his dependant, and would stand or fall upon the outcome of her husband’s claims.  Only the appellant husband has appeared in court today to prosecute his appeal and that of his wife, and he has made it clear to me that his wife’s case turns entirely on the circumstance of dependency, and that she has no independent claim under the Convention of her own.  In the circumstances, I shall deal with the appellant husband’s appeal and I shall refer to him as “the appellant.”

3                      The circumstances in India upon which the appellant relies to contend that he has a well-founded fear of persecution relate to a pharmaceutical business in which he and other members of his family were involved.  A dispute arose, it seems, as a result of the unwillingness of a new member of that partnership to pay the agreed price of his accession to the partnership to the retiring partner, who was not a member of the appellant’s family.  It seems that, after a period of time, the retiring partner had recourse to what might be described as direction action in order to prevail upon the new partner to make payment, and had that recourse against the appellant himself and other members of his family.  The appellant and his father moved to Mumbai and re-established their business on a new basis, but the difficulties continued.  It seems that there was a motor accident in which the appellant and his brother were involved, and the brother was injured to the extent which involved him losing the use of one of his hands.  Coincidentally, there was a substantial bomb blast in Mumbai, and the appellant alleges that the retiring partner used his political influence to allege that the appellant himself had, in some way, been implicated in the blast.  By then, the appellant had joined the BJP party and it is said that the retiring partner had influence with the Congress Party.  It is by reason of these circumstances that the appellant weaves politics into what commenced as a business dispute, albeit a dispute in which he himself was not directly involved. 

4                     The Tribunal made the following findings about the appellant’s claims and the factual evidence upon which they were based.  It refers to the appellant as the “first named applicant” or as “the applicant”:

In dealing with this application the Tribunal has formed the view that the first named applicant has suffered considerable difficulties as a result of the break down in the relationship between the first named applicant’s family and their former business partners.  The Tribunal accepts that the applicant worked in his father’s pharmaceutical business,  that his father’s old business partner left the business in 1994-1995,  that he was replaced with a new business partner in 1995, that the new partner agreed to buy out the old partner’s interests in the business and subsequently failed to pay him the money, that the old partner’s associates harassed and threatened the applicant and his family as a result, that his family relocated their business to Mumbai in 1999 and set up a new company without any partners, that the applicant joined the BJP party in 2000 and became an active member, that the applicant and his brother were involved in a motor vehicle accident on 30 April 2001 and his brother suffered serious injuries as a result, that the government of India set up an inquiry into the bomb blast in Mumbai and that the applicant’s former business partner tried to implicate him in the bomb blast.

The Tribunal is of the view that the above situation arose as a result of financial and business dealings between the applicant and his family on the one hand and their former business partners on the other.  The Tribunal is not satisfied that the harassment and threats that the applicant and his family were subjected to was in any way connected to the applicant’s political opinions or his membership of the BJP party. 

The Tribunal does not accept that the applicant reported these incidents to the police and that the police did not do anything about it.  Independent Country Information indicates that the Indian government is a democracy and generally respects the rights of its citizens.  The country information on India does not suggest that the first named applicant would be denied state protection if required by him or that he would be prevented from initiating legal proceedings against alleged perpetrators of violence against him or his family and having those proceedings determined by an independent judiciary. 

The Tribunal finds that there is no real basis for the applicant to claim fear of persecution.  Accordingly, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for reasons of his political opinion or any other Convention reason now or in the reasonably foreseeable future should he return to India. 

5                     In his application for judicial review in the Federal Magistrates Court, the appellant relied upon two grounds:

1.                  The Tribunal breached procedural fairness in making a decision. 

2.                  The Tribunal was in breach of s 424A of the Act. 

In his reasons for judgment given on 6 September 2007, the Federal Magistrate dealt systematically and comprehensively with those two grounds.  No error in the way he did so is apparent from those reasons.  Indeed, the appellant, who represented himself today, has not submitted that there was any error in the way the Federal Magistrate disposed of those two grounds. 

6                     In his Notice of Appeal, filed on 17 September 2007, the appellant relies upon a single ground - namely, that the Federal Magistrate erred in law in determining that the Tribunal did not make an error of law in its decision.  This ground is particularised with the statement that the Federal Magistrate erroneously found that the decision by the Tribunal was correct and was not infected by jurisdictional error.  The particulars continue:

His Honour overlooked four issues. 

Firstly, the suffering of my wife (the second applicant) fell within the meaning of particular social group (membership of family) under Article 1(A) of the refugees Convention.  (See C and S v Minister for Immigration and Multicultural Affairs[1999] FCA 1430)

Secondly, the Tribunal did not consider my claims within the meaning of particular social group (businessman of India who became a witness of truth in a contract) as defined in Article 1(A) of the refugees Convention. (See Dranichnikov v Minister for Immigration and Multicultural Affairs; Re MIMA [2003] HCA 26) 

Thirdly, the Tribunal did not assess my claims within the meaning of political opinion as defined in Article 1(A) of the Refugees Convention.  The Tribunal accepted that I was a businessman in India.  It also accepted that, I was a witness in the business contact between my old and new partner.  There was no information before the Tribunal that any of my family members wanted to give false evidence in relation to those contracts.  However, the Tribunal found that we suffered as a result of being witnesses in that contract.  I believe that not giving false witness to avoid persecution in the hand of the later business partner would constitute Political opinion as defined in Article 1(A) of the Refugees convention (See Voitenko v Minister for Immigration & Multicultural Affairs [1999] FCA 428,  C and S v Minister for Immigration & Multicultural Affairs [1999] FCA 1430, Franco-Buitrago v Minister for Immigration & Multicultural Affairs [2000] FCA 1525, V v Minister for Immigration & Multicultural Affairs [1999] FCA 428)

Fourthly, The Tribunal erred in finding that the harassment I and my family members faced in India constitute persecution within the meaning of s91R of the Migration Act 1958. (See Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989)169 CLR 349).

7                     If it is the fact that the Federal Magistrate overlooked those four issues, it ought to be the cause of no surprise.  None of those issues was put to the Federal Magistrate.  The appellant’s case before the Magistrate turned only upon the two grounds to which I have referred above, and neither raised issues of the kind which, according to the Notice of Appeal, his Honour overlooked.  Additionally, the first of those issues may be put to one side because this afternoon the appellant made it clear to me that the point did not relate to any suffering which his wife endured in India.  He gave me to believe that she was a member of a family which was rather comfortably off, and that she was not suffering for any reason.  He explained that that point related to the fact that whilst in Australia, she was obliged to do labouring work and was suffering from that circumstance. 

8                     Each of the other three issues which the Magistrate is said to have overlooked relates to matters which the Tribunal was said to have failed either to address or to consider, or in relation to which it was said that the Tribunal erred.  I consider that the position is one in which the appellant is seeking to rely upon what are, effectively, additional grounds of appeal which raise new points not ventilated in the court from which the appeal is brought.  In those circumstances I propose to follow the approach to which Justice Madgwick, with the assent of Justice Conti, referred in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 [85].

9                     The first matter which I should consider is whether the arguments now proposed to be relied upon have any reasonable prospect of success.  The first issue of the remaining three is that the Tribunal did not consider the appellant’s claims within the meaning of “particular social group” - namely, businessmen in India who become witnesses of truth in a contract.  A reading of the Tribunal’s decision does not give any basis to suspect that the appellant relied upon that kind of persecution in his claim for a protection visa.  Indeed, it is almost by inference that one is obliged to identify what was the reason for the persecution which the applicant alleged.

10                  In his written application for a protection visa, which is part of the materials in this court, the applicant was required to state his reasons for claiming to be a refugee.  The pro forma which he completed requested him to state everything as to why he thought he was a refugee and to inform the Department if he thought that any of the events referred to were because of his race, his religion, his nationality, his membership of a particular social group, his political opinion, or for other reasons.  There is a question which asks the appellant to state why he left the country.  About half a page on the form was provided for the answer to that question with the instruction at the bottom of the page, “If insufficient space, please attach a separate sheet with the details.”  The only entry inserted by the appellant was “risk of life.”  There was another question, “What do you fear may happen if you go back to that country?” and the answer was given “fear of persecution.”  In answer to the further question “Why do you think this will happen to you if you go back” the appellant referred to an attached statement, but that statement did not mention a social group.  There was ample opportunity for the appellant to indicate the basis upon which he felt that he was being persecuted, as instructed by the form, but that was not done.

11                  A reading of the decision of the Tribunal contains a description of the appellant’s business circumstances and of his joining the BJP, and it is from that that the Tribunal appears to have inferred that the appellant’s concern as to persecution related to his political opinion.  I have set out what the Tribunal said on that matter.  It will be apparent that nothing which the appellant said, either in his paperwork in applying for a visa or in the information which he gave to the Tribunal, provided a basis for a suspicion that his claim was based upon membership of a particular social group.  I do not think there is any substance in the proposition that in making no reference to such a matter the Tribunal constructively failed to exercise its jurisdiction.  In the circumstances, I think that this particular argument would have a negligible prospect of success.

12                  The second of the remaining issues to which the appellant referred is that the Tribunal did not assess his claims within the meaning of “political opinion” as defined in the Convention.  The point was, it seems, that the appellant’s reluctance to give false evidence was a manifestation of a political opinion which ought to have been taken into account by the Tribunal.  Whether or not this was so would have depended entirely upon the way the case was advanced before the Tribunal, and the particular balance of circumstances relied upon by the appellant.  Nothing in the reasons of the Tribunal would give one any cause to suspect that this particular supposed dimension of what constitutes a political opinion was pressed upon the Tribunal on behalf of the appellant.  Rather, the way that the matter appears to have been put to the Tribunal was that after the appellant had joined the BJP, in some way, either by reason of the motor accident or by reason of the bomb blast in Mumbai, the former business partner’s associations within the Congress Party gave a political dimension to the dispute which that partner had with the appellant and other members of his family.  Insofar as there was a potential political dimension to those aspects, whether there was any substance in the appellant’s claims in relevant respects was a matter for the Tribunal to decide and was wholly within its jurisdiction.  I do not think there is any substance in the proposition that the Tribunal constructively failed to exercise jurisdiction in these respects.

13                  The final issue which the appellant now says the Magistrate overlooked is that the harassment that he and other members of his family faced in India constituted persecution within the meaning of s 91R of the Act.  That section sets out what is effectively a statutory definition of “persecution” for the purposes of Convention claims under the Act.  In finding that there was no real basis for the applicant’s claims to fear persecution of any kind, there is no reason to believe that the Tribunal did not properly instruct itself in the terms of s 91R.  It was not for the Magistrate, and it is not for this court, to review the meritorious basis of the Tribunal’s decision in that regard.  The only question is whether it failed to address the issues which arose under the statute, and it is clear that it was very much concerned with the question whether there was a fear of persecution and it came to the conclusion that there was none.  In this respect also, therefore, I do not think that the arguments would have any prospect of success. 

14                  The second point referred to by Madgwick J is whether there is an acceptable explanation as to why the arguments sought to be raised on appeal were not raised in the hearing below.  I asked the appellant whether these points had been raised in the hearing below and he told me, without further explanation, that they had.  The difficulty with that is that the Magistrate’s reasons make no reference to them.  Those reasons are consistent only with the appellant then running his case within the grounds which were articulated in his application for judicial review.  Those grounds, as I have said, were twofold, and did not include any reference to the matters which the appellant now seeks to agitate.  I am not prepared to accept that these three matters were raised before the Magistrate.  If they were raised, at least in the way that they find expression in the Notice of Appeal, it seems incredible that his Honour would not have mentioned them in his reasons.  By reason of the way he dealt with it in his submissions this afternoon, the appellant has not chosen to give any explanation as to why the case which he now seeks to run was not conducted before the Federal Magistrate.

15                  The next matter referred to by Madgwick J is the extent of the dislocation to the court occasioned by a consideration of the new argument, and the question whether that would be an efficient use of judicial sitting time.  I consider that to be a consideration of neutral impact upon the matters which I need to decide.  The truth of the matter probably is that if I were to permit these matters to be raised and argued, they would have been decided in accordance with what I have assessed to be their prospect of success. 

16                  The fourth matter is what is at stake in the case for the appellant.  The appellant is an applicant for a protection visa.  If he is correct in the case which he now claims constitutes the true position, then he would have a fear of persecution which is a serious matter.  That is a reason why the points which he now seeks to raise ought to be considered and dealt with on their merits. 

17                  The fifth point in Madgwick J’s list is whether the resolution of the issues raised would have any importance beyond the case at hand.  I do not consider that they would. 

18                  The sixth point on the list is whether there is any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent.  Mr Cleary, who represented the Minister, has not drawn my attention to anything of that kind, and I do not think that it is self‑evident that there would be any such prejudice.  I do not take that factor into account adversely to the appellant. 

19                  Finally, the question is where, in all the circumstances, do the interests of justice lie?  I regard that, as it were, as a catch-all consideration which would probably, in most cases, embody the ultimate decision of the court on the application to advance new legal arguments.  Because of the view which I have taken as to the absence of any reasonable prospects of success in any of these points, I do not think that there would be injustice occasioned to the appellant if leave to run them were refused.  I cannot see why the points, if there is any merit in them, were not put before the Magistrate. 

20                  The documents before the Magistrate appear to be so different from the Notice of Appeal as to be like ships passing each other in the night.  I am not disposed to allow this appeal to be an occasion for the appellant to advance what is, clearly, quite a different case from that which he ran before the Federal Magistrate, and to do so without any proper explanation for that circumstance. 

21                  I will not give the appellant leave to rely upon the arguments which are implied in the single ground in his Notice of Appeal, filed on 17 September 2007.   Since those were the only arguments upon which he relied, it follows that the appeal must be dismissed.

Associate:

Dated:         7 March 2008