FEDERAL COURT OF AUSTRALIA

SZMEZ v Minister for Immigration and Citizenship [2008] FCA 1743

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 cited

SZMEZ v Minister for Immigration [2008] FMCA 1097 considered

SZMEZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1243 of 2008

BENNETT J

5 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs in the amount of $2400.

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

background

1                     The appellant was born in India but is a citizen of South Africa.  He arrived in Australia on 8 September 2007 and on 19 October 2007 he lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship.  The application was refused by a delegate of the Minister.  The delegate’s decision to refuse the protection visa was affirmed by the Refugee Review Tribunal (‘the Tribunal’).  An application for review of the decision of the Tribunal was dismissed by Scarlett FM (SZMEZ v Minister for Immigration [2008] FMCA 1097). 

2                     The appellant appeals from the decision of Scarlett FM.

application for adjournment of the appeal

3                     The appellant applied for an adjournment of this appeal for some months.  He notified the first respondent’s legal representatives of the application for adjournment on the morning of the hearing of the appeal.  The application for adjournment was opposed. 

4                     In support of his application for adjournment, the appellant said that he was in pain and unable to participate in the appeal because he was suffering from haemorrhoids.  He did not present a medical certificate in support of that assertion but he showed the Court a prescription for what appeared to be a cream for haemorrhoids and a prescription for Coloxyl Senna.  The appellant said that he was unable to provide a medical certificate because his Medicare card had expired.  He then said that he could obtain a new Medicare card on the Monday following the appeal. 

5                     There was no indication that the appellant was mentally incapable of participating in the appeal and I was not satisfied that he was unable to participate by reason of extreme pain.  The prescription did not include a prescription for pain relief medication. 

6                     I was not satisfied that the appellant was unable to participate in the appeal and I continued with the hearing.  In particular, I was not satisfied that it was appropriate to adjourn the appeal for the months sought by the appellant. 

7                     After refusing the application for adjournment, I sought assistance from the appellant with respect to his notice of appeal which raises grounds of both fact and law.  The appellant said that he was unable to concentrate in order to assist the Court and that he was not even able to deal with matters of fact that would be peculiarly within his own knowledge.  At that stage, the appellant said that he wished to consult a lawyer.  However, I note two matters in that regard.  First, the appellant said that he could not afford a lawyer.  When pressed to proceed, he said he wished to consult one.  Second, the appellant appeared in person before Scarlett FM and was not legally represented in that Court.

8                     Accordingly, I sought the assistance of counsel for the first respondent to elucidate the grounds of appeal contained in the appellant’s notice of appeal. 

the hearing before the tribunal

9                     The appellant claimed before the Tribunal that he had travelled to South Africa to assist his uncle in his uncle’s store and that he subsequently acquired South African citizenship.  After his uncle was murdered, the store was closed and the appellant had to look for other work.  He obtained employment in another shop but claimed that after a period of time he was badly treated with his employer refusing to pay his wages.

10                  The appellant claimed that even after he resigned, his former employer continued to send people to threaten him.  He said that his attempts to seek police protection in the face of these threats were unsuccessful and that the authorities were unwilling to assist him as he could not pay the sum of money they sought for assistance.  He also stated before the Tribunal that he had been discriminated against due to his Indian ethnicity by his former employer and by others. 

11                  The Tribunal was not satisfied that the appellant’s claims were Convention-related.  The Tribunal found that the appellant’s claim that the attitude of his former employer might have been attributed to his Indian ethnicity was not made out on the facts.  It noted that the former employer had initially engaged the appellant despite his ethnicity.

12                  The Tribunal considered that the dispute between the appellant and his former employer was, in fact, over unpaid wages.  That is, even if the Tribunal had accepted that the appellant had been persecuted, the Tribunal did not accept that the reason for any persecution was a Convention reason, but rather arose from a dispute over unpaid wages.

13                  The Tribunal rejected the appellant’s claim that he had been harassed by thugs.  It did not accept that the appellant’s former employer would have had people threaten the appellant and force his departure from South Africa.  The Tribunal further found that the South African police investigated previous issues raised by the appellant and that while there was some evidence of corruption in the South African police force, there was no evidence that the appellant had been, or would be, denied appropriate protection. 

14                  The Tribunal also expressed the opinion that the chance that the appellant would come to harm at the hands of his former employer on his return to South Africa was remote, taking into account the period of time between the appellant’s resignation (in February 2007) and his departure from his residence (in August 2007).  The Tribunal concluded that this was at odds with a genuine intention on the part of the appellant’s former employer to harm him seriously.  The Tribunal also stated that even if it could be found that there was some threat to the appellant, it was possible for him to move within South Africa to avoid the threat. 

15                  Accordingly, the Tribunal concluded that there was not a real chance of the appellant suffering serious harm by reason of his race, religion, nationality, membership of a particular social group or political opinion, now or in the foreseeable future, were he to return to South Africa.  He was not, therefore, a person to whom Australia has protection obligations.

the proceedings in the federal magistrates court

16                  The grounds relied upon in support of the application to the Federal Magistrates Court were: 

1.                  failing to accord procedural fairness;

2.                  acting in a manifestly unreasonable manner, particularly due to a failure to consider the appellant’s claim in accordance with the Convention and with s 91R of the Migration Act 1958 (Cth) (‘the Act’);

3.                  failing to take into account the totality of the evidence in considering the reasonableness of relocation within South Africa; and

4.                  failing to consider that the appellant was a member of a particular racial group, that is South African Indians, for whom effective state protection was not available. 

17                  The Federal Magistrate did not find that any of those grounds were made out and dismissed the application. 

18                  By his notice of appeal, the appellant seems to be challenging his Honour’s conclusions on the third and fourth grounds of review as raised in the Federal Magistrates Court.  The appellant also appears to be arguing that the Tribunal misapplied certain of the tests under the Convention.

the current appeal

19                  The grounds of appeal that I have discerned from the notice of appeal (with the assistance of counsel for the first respondent) are as follows: 

1.                  that the Tribunal misapplied the test of a well-founded fear of persecution for a Convention reason;

2.                  that the Tribunal did not take into account the current situation in South Africa and          that the Tribunal was under an obligation to investigate that current situation;

3.            that the Tribunal did not consider all of the evidence with respect to the reasonableness of relocation within South Africa.

Ground one

20                  I see no basis for the appellant’s argument that the Tribunal misapplied the relevant test.  The Tribunal set out the test to be applied for granting a visa under s 65(1) of the Act and the key elements of the definition of “refugee” under the Convention.  The Tribunal did not accept that the third element of the definition was present, namely, a nexus between the appellant’s claimed fear and the reasons set out in the Convention.  The Tribunal gave clear reasons for that conclusion.  Further, it stated what it considered to be the reason for any persecution, namely, a dispute between the appellant and his former employer over wages.  That finding was open to the Tribunal on the evidence before it.  The appellant has not established any error on the part of the Tribunal in coming to that conclusion or error on the part of the Federal Magistrate.  As his Honour noted at [35]:

The Tribunal clearly took the view that the [appellant’s] original concern, being a dispute with his employer, was not a Convention related dispute … .

21                  The Federal Magistrate rejected the criticisms made before him in relation to that finding.  The appellant has not pursued some of those criticisms, such as an alleged lack of procedural fairness on the part of the Tribunal, in this appeal. 

Ground two

22                  Having concluded that there was no nexus between the claimed fear of persecution and a Convention reason, the Tribunal was under no obligation to consider whether the appellant would fear persecution in the future in respect of factual claims that it had rejected.  Further, the Tribunal was under no obligation to conduct its own investigations into the current situation in South Africa.

Ground three

23                  Federal Magistrate Scarlett concluded (at [39]) that the Tribunal was not obliged to consider the question of the appellant’s relocation within South Africa and that it was clearly an alternative finding by the Tribunal. 

24                  His Honour noted that even though there was no necessity for the Tribunal to consider the issue of relocation, he considered that the Tribunal’s consideration was consistent with recent decisions of the High Court and not the subject of jurisdictional error. 

25                  The Tribunal set out in its reasons the matters raised with the appellant as to his ability to settle away from his former place of residence (but within South Africa) and concluded that:

Even if it could be found that there was some threat to the [appellant] from his former employer and that no appropriate protection could be obtained from police arising from the [appellant’s] race, in the Tribunal’s view that fear of harm would not extend throughout South Africa.

26                  The Tribunal noted that the appellant was able to move within South Africa and did not believe it plausible that the former employer’s interest in the appellant would extend throughout the country.  That finding and conclusion were open to the Tribunal on the evidence before it.  I see no error in the Tribunal’s conclusion that the appellant could move within South Africa and thereby reduce any threat from his former employer.

The appellant’s ethnicity

27                  Counsel for the first respondent raised a further matter that may be drawn from the notice of appeal: that the appellant argued that the Tribunal failed to apply the correct test in relation to his fear of harm as a result of his ethnicity. 

28                  The Federal Magistrate characterised the appellant’s criticism of the Tribunal as being, in substance, a complaint about its rejection of this claim.  As his Honour noted, the rejection of a claim is different from a failure to consider the claim and there was no basis for the appellant to challenge that rejection. 

29                  In any event, the Tribunal did consider independent information which indicated that, while there was some tension between black South Africans and foreigners in some areas of South Africa, there was no mention of events involving attacks on South African citizens of Indian ethnicity.  The Tribunal’s reliance on that material was a matter for the Tribunal and it was under no obligation to search for further country information to support the appellant’s claims (see Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] citing Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J, Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 561, SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8], SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [16]).

conclusion

30                  The appellant has failed to demonstrate error on the part of the Federal Magistrate or jurisdictional error on the part of the Tribunal.  He has not made out any of the matters set out in his grounds of appeal.  Accordingly, the appeal should be dismissed with costs.

Associate:

Dated:         19 November 2008