FEDERAL COURT OF AUSTRALIA

SZJLH v Minister for Immigration and Citizenship [2008] FCA 626

MIGRATION – failure of Appellants to appear – appeal proceeded in absence of Appellants – no Convention persecution – no failure on the part of the Refugee Review Tribunal to assess the claims – findings of Tribunal were findings of fact open to be made – no denial of procedural fairness

Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150, art 1A(2) (entered into force 22 April 1954)

Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii)

Federal Court Rules 1979 (Cth) O 52 r 38A(1)(d)

Federal Magistrates Court Rules 2001 (Cth) r 13.03A(c)

Attorney-General (NSW) v Quin (1990) 170 CLR 1 followed

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed

SZJLH v Minister for Immigration & Citizenship [2007] FMCA 2067 cited

SZJLH v Minister for Immigration & Citizenship [2008] FMCA 175 cited

SZJLH AND SZJLI v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 286 OF 2008

FLICK J

7 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.      The appeal be dismissed. 

2.   The Appellants to pay the costs of the First Respondent fixed in the sum of $1,600.

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

REASONS FOR JUDGMENT

1                     The First Appellant was born on 19 August 1973; the Second Appellant, born on 27 September 1978,  is his wife. Both claim to be citizens of India.

2                     The Appellants arrived in Australia on 31 January 2006 and applied to the Department of Immigration & Multicultural Affairs for Protection (Class XA) Visas on 10 March 2006. The Appellants are Hindu and, in their application for the protection visas, claimed that they “fear for our lives under the grounds of race and religion and politics”. They further claimed that “the muslim people are also main problem”.

3                     A delegate refused that application and an application for review was thereafter filed with the Refugee Review Tribunal on 5 June 2006. A hearing before the Tribunal took place on 10 August 2006. The Tribunal affirmed the decision not to grant the visas sought and handed down its reasons for decision on 31 August 2006.

4                     The Federal Magistrates Court ultimately dismissed an application seeking to review the decision of the Tribunal: SZJLH v Minister for Immigration & Citizenship [2008] FMCA 175.

5                     The Appellants now appeal to this Court from that decision. The Grounds of Appeal as set forth in the Notice of Appeal (without alteration) provide as follows:

His Hon. Federal Magistartae Raphel FM failed to hold that the Refugee Review Tribunal made a jurisdictional error when it misunderstood or misconstrued the term “religious belief“ as it appears in the UN Refugee Convention .

The RRT failed to appreciate that appellant suffered harm at the hands of Muslims opponents only because of his religious belief being a Hindu . The Tribunal did not understand the applicant’s fear of harm and misaaplied the law-affected the Tribunal’s application of law. The appellants claim that the Tribunal failed to assess the cumulative effects of separate incidents of attacks on the appellant related with his claim for the protection visa. The Appellants claim that they have fear of persecution .

2.The appellants were denied procedural fairness when Hon Federal Magistrate failed to consider that appellants did not attend the scheduled hearing on 28 November 2007 due to financial hardship . They were unable to pay airfare and train fare because of financial hardship . They could not inform the Court because the network in that countryside was not working . Hon. Federal Magistrate did not give any consideration to waive the Respondent’s cost of $4500.

Notwithstanding the numbering appearing in those grounds, it is considered that the Notice of Appeal raises three grounds.

6                     There was, however, no appearance for the Appellants when the matter was called on for hearing at 2.20 pm this afternoon. The matter was then called outside the Court, but to no avail. The proceedings were stood down to 2.35 pm to accommodate the prospect that the Appellants may have been late in arriving. The matter was then called outside the Court but again to no avail. The interpreter who attended Court to assist the Appellants was requested to telephone the Appellants on the mobile phone number set forth in their Notice of Appeal. That number was dialled, but the mobile telephone was turned off.

7                     Counsel for the First Respondent sought an order that the appeal be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

8                     Previously filed by the Appellants was a written Outline of Submissions which has been considered, as have the Respondent Minister’s written submissions. 

9                     Rather than dismissing the appeal pursuant to s 25(2B)(bb)(ii) of the 1976 Act, it was considered more prudent to proceed to hear the appeal in the absence of the Appellants and to rely upon the written submissions they had filed: Federal Court Rules 1979 (Cth), O 52, r 38A(1)(d). Oral submissions were advanced on behalf of the Respondent Minister and the matter was stood down for judgment at 3.05 pm. The hearing in fact resumed at 3.15 pm and, before judgment was delivered, the matter was again called outside the Court but with no greater success than on the first two occasions.

10                  Having so proceeded, it is considered that none of the Grounds set forth in the Notice of Appeal have been made out and that the appeal should be dismissed.

Misconstruction of the Phrase “Religious Belief”

11                  Australia is a party to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. Article 1A(2) of the Convention defines a refugee as being any person who:

… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

12                  The misconstruction of the phrase “religious belief”, as alleged in the Notice of Appeal, was not further identified.

13                  The Appellants, however, confront a fundamental difficulty in making out the first Ground of Appeal — namely, whatever may have been the misconstruction of that phrase, any detriment suffered was not a detriment occasioned by their religion or any other Convention related reason.

14                  The Tribunal reviewed the evidence and thus made the following findings of fact:

Relying on the evidence from the U.S. State Department reports for 2005 referred to above, I am satisfied that there are continuing tensions in India between Muslims and some extremist Hindus, but that it is Muslims and other religious minorities who are generally at risk from the latter, rather than the reverse. I am also satisfied that India has a “generally tolerant and highly diverse” society. I am further satisfied that Hindus are not generally denied police or other state protection because of their religion – indeed it appears that the reverse is more often the case. For these reasons I am not satisfied that merely being Hindu in India is sufficient to give rise to a well-founded fear of persecution for the Convention reason of religion.

As to [SZJLH’s] oral account of his reasons for leaving India, I accept that he was the owner of a business which specialised in wedding decorations, and that between 2004 and 2006 a competitor tried to drive him out of business. Although he claimed this businessman was a Muslim, [SZJLH] unequivocally stated that the reason for the harassment was business-related. It was not for the reason of his religion … [SZJLH] also gave clear evidence that, with the exception of one other family, the town’s other Hindus were not being seriously harassed or harmed by local Muslims, a matter which indicates that the essential and significant reason for whatever problems he faced was not his religion.

15                  The first Ground of Appeal is considered to be without merit and is thus rejected.  Concurrence is expressed with the conclusion as reached by the Federal Magistrate.

Failure to Appreciate the Harm Suffered

16                  The second Ground of Appeal asserts that the Tribunal failed to appreciate the harm suffered by the Appellants and “failed to assess the cumulative effects of separate incidents of attacks”. Left to one side for present purposes is the fact that this asserted grievance is one directed to an alleged error on the part of the Tribunal and that the present proceedings are an appeal from the decision of the Federal Magistrates Court.

17                  After recounting its assessment as to the oral account given by the Appellants of their reasons for leaving India, the Tribunal went on to make further findings in respect of the accounts given as to attacks upon the Appellants’ family. The Tribunal also made the following finding:

Further, much of his evidence as to when attacks on him and his family occurred was vague and internally contradictory and for that reason I have some doubt that he was harmed at all in 2005. As to his claim that there was an attempt to abduct his children in late 2005, I have the greatest difficulty believing this, given that the applicants chose to leave their children in their family home two months later when the applicants left India, where they would presumably remain vulnerable to a further abduction attempt and, further, that the applicants made no attempt themselves to move to another village or town rather than leave the country – an option which would have enabled them to remain with their children. …

The Tribunal further made separate findings in respect of claims said to have been lodged with the police. The Tribunal ultimately went on to find:

For all these reasons I consider that [SZJLH] has considerably exaggerated the level of harassment or harm he and his family faced in 2005, and am certainly not satisfied that the reason for any difficulties he (or they) faced was their religion, political opinion or any other Convention reason.

I am satisfied that the applicants could return to their village and would not be persecuted there for any of the reasons set out in the Convention. Therefore I find that they do not have a well-founded fear of Convention-related persecution in India.

The Tribunal’s reasons also recount that it had “considered the evidence as a whole”.

18                  The findings of the Tribunal were open to it upon the evidence before it and no error is exposed in the Tribunal’s reasons. There has been no failure on the part of the Tribunal to consider the claims to harm asserted by the Appellants.  

19                  The contention advanced on behalf of the Appellants, namely that the Tribunal failed “to assess the cumulative effects of separate incidents of attacks on the [First] appellant related with his claim for the protection visa”, is denied by the detailed findings of fact made by the Tribunal. The contention is thus rejected. A reading of the reasons of the Tribunal discloses findings being made in respect of the matters raised by the Appellants and an ultimate conclusion being reached which assessed those matters taken into account in their entirety. 

20                  As has been repeatedly pointed out, judicial review of an administrative decision — let alone judicial review confined to jurisdictional error — does not extend to a review of the merits of a decision: Attorney-General (NSW) v Quin (1990) 170 CLR 1. Brennan J there observed at 35–6:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

These observations have been oft cited with approval: eg, Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Even a wrong finding of fact alone does not constitute an error of law: Abebe v Commonwealth [1999] HCA 14 at [137], 197 CLR 510 at 560 per Gummow and Hayne JJ.

21                  The second Ground of Appeal is rejected. It is an impermissible challenge to the findings of fact as made by the Tribunal and is, in any event, contrary to the findings of fact as made by the Tribunal.   

Denial of Procedural Fairness

22                  The reference in the final Ground of Appeal to the hearing on 28 November 2007 is a reference to the date upon which the hearing before the Federal Magistrates Court was first scheduled to take place.

23                  On that occasion there was no appearance by either of the now Appellants and the application was dismissed pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth): SZJLH v Minister for Immigration & Citizenship [2007] FMCA 2067.

24                  Any continuing significance as to the events of 28 November 2007, however, remains elusive. As set forth in the reasons for decision of the Federal Magistrates Court now under appeal, an application was made on 12 February 2008 to vacate the orders previously made and, on that occasion, the Federal Magistrate in fact vacated the orders as requested and proceeded to hear and resolve the case then sought to be advanced.

25                  There is no procedural unfairness in either the Federal Magistrate initially dismissing the application in November 2007, when the now Appellants failed to appear, and certainly no procedural unfairness in the Federal Magistrate thereafter, in February 2008, entertaining and resolving the arguments that were subsequently sought to be advanced. Whatever may have been the reasons for the now Appellants not previously appearing before the Federal Magistrates Court, they need not be further pursued; their case has been heard and determined by that Court in a procedurally fair manner.

26                  To the extent that some complaint is made as to the Federal Magistrates Court not giving “consideration to waive the Respondent’s cost of $4500”, it is sufficient to note that an order for costs was within the discretion of the learned Federal Magistrate. There is no discernible denial of procedural fairness in the Federal Magistrate making that order or any other reason to set aside that order. Although the quantum of the costs ordered may, without explanation, appear to have been somewhat greater than may have been otherwise anticipated, the Federal Magistrate explained that the costs ordered to be paid took “into account both hearings”.

27                  At the conclusion of the present appeal, leave was granted to the First Respondent to file an Affidavit which estimated the Respondent Minister’s costs of these proceedings as exceeding $2,250. A fixed order for costs in the sum of $1,600 was sought and it is considered that such an order should be made.

Orders

28                  The orders of the Court are:

1.      The appeal be dismissed. 

2.      The Appellants to pay the costs of the First Respondent fixed in the sum of $1,600.

Associate:

Dated:         7 May 2008