FEDERAL COURT OF AUSTRALIA

SZLLA v Minister for Immigration & Citizenship [2008] FCA 1722

SZLLA and SZLLB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1104 of 2008

PERRAM J

5 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the costs of the first respondent in the sum of $2,600.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of the Federal Magistrates Court given on 25 June 2008.  On that day, that court dismissed the present appellants’ application for relief against the Refugee Review Tribunal (“the Tribunal”).  The relief which was sought from the Federal Magistrates Court was relief essentially in the nature of orders quashing the decision of the Tribunal.  The Tribunal had, at an antecedent time, heard and determined an application by the appellants for a review of a decision made by a delegate of the Minister.  The delegate of the Minister had dismissed the appellants’ applications for protection visas on 19 May 2007.

2                     A number of decisions in this country have established that, in applications of the kind which were made to the Federal Magistrates Court, it is necessary to demonstrate that the decision of the Tribunal was afflicted by jurisdictional error.  That is, it is necessary to show that the decision was made in excess of the power which the Tribunal had, with the consequence that the decision is not valid.  If an allegation of that kind is unable to be sustained, then the decision remains effective and by reason of the provisions of s 476 of the Migration Act 1958 (Cth), is not able to be reviewed in the Federal Magistrates Court.

3                     This has the consequence that it is possible for decisions of the Tribunal to be immune to review by the courts notwithstanding that the decisions contain errors of law or errors of fact.  The fact remains that the Parliament of Australia has made plain, through the provisions of s 476, that review before the Federal Magistrates Court is circumscribed in the manner in which I have indicated.  It was therefore incumbent upon the present appellants, in making that application to the Federal Magistrates Court, to demonstrate jurisdictional error on the part of the Refugee Review Tribunal.

4                     The federal magistrate was unable to discern in the Tribunal’s reasons or the processes by which the Tribunal arrived at its decision any jurisdictional error and it was for this reason that it dismissed the appellants’ application.  That argument is now renewed in this Court.  It is necessary, therefore, to say a few words about the course of events before the Tribunal.  The appellants, who are citizens of India, arrived in Australia on 22 March 2007.  The circumstances in which they claim to be entitled to protection, by way of a protection visa, are as follows.  The first appellant, who I shall call the husband, is a businessman.  He is married to the second appellant.  They have no children.  They travelled to Australia on a valid passport on 21 August 2006, and arrived on a tourist visa on 22 March 2007.  The wife was born in India on 25 August 1982 and she travelled in similar circumstances.  Both have substantial education, and the husband was, it appears, at least until 2007, the owner and partner of an auto parts business.

5                     Shortly put, the appellants’ claim is that the husband’s father accumulated a large monetary debt prior to his death when the husband was only six years old.  He claims that his family took over the father’s debt which was both considerable and increasing as a result of interest which was accruing on a daily basis.  He claims that people started harassing him for repayment and that his mother was forced to sell their house.  He claims that he and his family moved around as no one would help them.  A number of other hardships arising from the existence of that debt were set out and considered and recorded by the Tribunal.

6                     Each of these claims had been made originally to the delegate.  Before the Tribunal the present appellants added an additional argument that the father had subsequently been poisoned, the suggestion being that the poisoning had been done by the creditors.  The Tribunal found that even accepting that all of these events had occurred that persecution by the creditors was not persecution for one of the purposes set out in Article 1A(2) of the Refugees Convention.  By that I mean that the Tribunal found that fear of persecution at the hands of one’s creditors is not persecution for the reason of race, religion, nationality, membership of a particular social group or political opinion.

7                     Before me today, the husband again put his claim that he was fearful of his creditors.  When I suggested to him that it was necessary for him to bring himself within the rubric of Article 1A, he said that he suffered from all of the forms of persecution set out in Article 1A.  Further questioning by me, however, extracted from him that the persecution he had in mind was simply persecution at the hands of his creditors.  The Tribunal was unable to determine that the appellants fell within Article 1A.  For myself, it is impossible to discern any error by the Tribunal in approaching the matter in that way.

8                     It necessarily follows that it is impossible to discern any error in the manner in which the Federal Magistrates Court approached the case.  In this Court, the appellants filed a notice of appeal on or about 14 July 2008.  Three grounds were advanced.  The first was that the learned federal magistrate had simply endorsed the decision of the Refugee Review Tribunal.  It may be accepted, I think, that if a member of the Federal Magistrates Court were simply to endorse a decision made by the Refugee Review Tribunal, that this would involve or amount to a constructive failure on the part of the Federal Magistrates Court to exercise its jurisdiction.

9                     There are perhaps some technical questions as to whether this Court would be able to entertain an appeal on that basis, although I think the better view is that it probably could.  It is not necessary to express a concluded view about those matters because the allegation that the Federal Magistrates Court endorsed the Tribunal’s decision is, so it seems to me, wholly without foundation.  To read the Federal Magistrate’s decision is to see at once that careful and anxious consideration was given either to try to identify or to extract from the appellants some description of how the Tribunal’s decision was affected by jurisdictional error.  In that circumstance, it seems to me that the suggestion in ground one is wholly without substance and should be dismissed.

10                  There was, attached to ground one, an additional argument that “the question of real harm was not taken into the account.”  By this, I take the husband to be submitting that the Tribunal failed to consider the risk of harm to him if he were returned to India.  That suggestion seems to me to also be without substance.  The Tribunal recorded the appellants’ argument as follows:

The applicant’s claims are essentially that he fears harassment and harm from people to whom he owes money and has been unable to repay.  He claims he has been subject to harassment in the past as well as death threats and fears that he will be subject to further harassment and death threats if he returns to India.

11                  In that circumstance this suggestion in the grounds of appeal must be rejected.  The second ground advanced in the notice of appeal is that the appellant:

… has a case which should have been dealt in accordance with the law covering the immigration matters , the appellant made out a case which in fact  requires the judicial inference of this honorable Court to meet the ends of justice .

12                  I am prepared to read this ground as an allegation that the Tribunal committed an error of law of some description in the performance of its functions.  However, without identification by way of particulars of what that error is or may be, it is impossible to discern whether whatever it is, it is a jurisdictional error.  As I have said, it is only if the appellants     were to identify a jurisdictional error that there would be a matter which would warrant either the intervention of the Federal Magistrates Court at first instance, or this Court on appeal.  Accordingly, I reject the ground.

13                  The third ground was that the Tribunal had failed to assess the claims made by the appellants in accordance with the refugee laws “as laid down by the hand book of the UNHCR.”  It seems to me that argument must be rejected.  The Tribunal expressly adverted in its reasons to the fundamental question it had to answer; namely, whether the appellants fell within Article 1A(2) of the Refugees Convention.  The Tribunal not only set out the text of Article 1A but referred to a number of High Court decisions in which the relevant parts of Article 1A had been interpreted in the context of Australian immigration jurisprudence.  It seems to me in that circumstance that the suggestion that the Tribunal failed to apply the law in relation to Article 1A ought to be rejected.

14                  It ought also be rejected because, fundamentally, the appellants have simply failed to come to grips with the proposition that being persecuted by one’s creditors is not the same as being persecuted for reasons of race, religion, ethnicity or any of the other grounds in Article 1A of the Convention.  Without such a suggestion being made, it was impossible, in my opinion, for the Tribunal to accept what was being submitted to it.  Far from the appellants establishing any jurisdictional error by what the Tribunal did, it seems to me that had the Tribunal done what the appellants wanted it to do, it most likely would have committed a jurisdictional error.

15                  As part of ground three, the appellants also complained that the Tribunal had failed to appreciate the real threat to the husband’s life.  I have already considered that aspect of the matter in relation to ground one.  On 3 November 2008, the appellants filed written submissions.  This document set out a number of matters which were essentially factual statements in relation to the husband’s position.  None of them, in my opinion, established any form of jurisdictional error by the Tribunal, still less the existence of any species of appellable error in the Federal Magistrates Court.

16                  I should say, for completeness, that part of the document refers to the appellants     having informed the authorities in India of the harassing conduct towards the husband by the creditors.  That account in the written submissions appears to be at variance with findings of fact made by the Tribunal which recorded explicitly that the appellant had not reported his suspicions regarding his father’s death to the police, nor had he claimed to have reported harassment or threats to him.  That statement, of course, establishes a factual tension between the written submission of 3 November 2008 and the factual findings of the Tribunal.  However, the existence of that tension does not seem to me to be relevant to the existence of a jurisdictional error.

17                  If the appellants had been able to demonstrate that the Tribunal had before it no evidence at all that he had not reported the harassment to the police then there might begin to be at least the preliminary foundations for an argument that an error of law may have been committed by reason of a finding of fact being made for which there was no evidence.  However, no such attempt was made before me, other than to assert in the written submissions that this factual matter, namely, his complaint to the authorities, had not been found.  In that circumstance, it does not seem to me that that matter is of any particular significance.  I do not think that any of the other matters mentioned in this document which is both discursive in nature and diffuse in content are significant.

18                  In those circumstances, it seems to me unavoidable that the conclusion which must be drawn is that no error has been demonstrated in the decision of the federal magistrate.  That being so, it seems to me that the appropriate order is for the appeal to be dismissed with costs.

19                  I order that costs be fixed in the amount of $2,600.

Associate:

Dated:         20 November 2008