FEDERAL COURT OF AUSTRALIA

SZNXA v Minister for Immigration and Citizenship [2010] FCA 775

THE COURT ORDERS THAT:

1.                  The appeal filed on 26 March 2010 be dismissed.

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

1                     This is an appeal against a judgment of a Federal Magistrate delivered 11 March 2010, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

background and procedural history

2                      The appellants are citizens of India who arrived in Australia on 10 February 2009.  On 18 March 2009 the appellants lodged an application for protection visas with the Department of Immigration and Citizenship.  A delegate of the Minister for Immigration and Citizenship (“the Minister”) refused that application.  The appellant then applied to the Tribunal for a review of that decision.  The Tribunal subsequently affirmed the delegate’s decision.  The appellant then made an application for judicial review of the Tribunal’s decision to the Federal Magistrates Court of Australia.

3                     The appellant included his partner, the second appellant, in his application form.  The second appellant made no claims in her own right, having only completed an application form D.  I will refer to the first appellant as “the appellant” throughout these reasons. 

claims of religious and political PERSECUTION

4                     The appellant claimed to fear persecution in India at the hands of the second appellant’s brother and his political colleagues, including a politician named Raj Thakerey.  The appellant claimed this persecution will take place because he is a Muslim and in a relationship with the second appellant, who is a Hindu.  The appellant claimed that both he and the second appellant were beaten by the second appellant’s brother, and that they were both facing significant pressure from their families not to peruse the relationship.  The appellant claimed that no matter where he and his partner may go in India, they may be found and harmed.  They therefore decided to leave India for Australia.

the TRIBUNAL AFFIRMS THE DELEGATE’S DECISION – no well-founded fear of persecution for a convention reason

5                     The Tribunal accepted that there is strong opposition on the part of the second appellant’s family to the relationship between her and the appellant because of their different religions.  Further, the Tribunal accepted that this opposition resulted in a physical confrontation between the appellant and his family, and the family of the second appellant.  This physical confrontation lead to the appellant, his father, and his partner suffering injuries.

6                     However, the Tribunal found that the appellant did not have a well-founded fear of persecution for a Convention reason.  The Tribunal concluded that there was no evidence to suggest that the appellant and his partner face harm for any Convention reason, including that of their religion.  As to his claims about the second appellant’s brother being in a political party called Maharashtra Navnirman Sena (“MNS”), the Tribunal did not accept that there was any link between this political involvement and the family’s opposition to them as a couple.  Furthermore, the Tribunal was not satisfied that the second appellant’s brother had such a political connection with the MNS that the party would take the trouble to seek the appellant out throughout India.  Moreover, it found there was no evidence to suggest that the MNS party had any influence outside of the State of Maharashtra.

7                     Finally, the Tribunal also found that it would be reasonable for the appellant to relocate to another major city within India.  If they did, the Tribunal found that the likelihood that the second appellant’s family and their friends would be able to locate them in another major city in India, and do them harm, was so remote as to not constitute a “real chance”.  The Tribunal also found that the appellant’s claim that the police would get involved and seek them out if they returned to India, was no more than speculation.

8                     Accordingly, the Tribunal found that the appellant’s fear of harm was not well-founded, and it was not, therefore, satisfied that the first or second appellant was a person to whom Australia owed protection obligations under the Convention.  On this basis, it affirmed the decision of the delegate.

the federal magistrate finds no jurisdictional error

9                     The appellant filed an application for judicial review in the Federal Magistrates Court, which raised the following grounds:

1.         The Tribunal member had failed to honour his undertaking.  The requirement to put information to an applicant is contained in s.424A which relevantly states ...

It is my case that the Tribunal ignore its undertaking to give me an opportunity to make written submission about the inconsistencies in my evidence; therefore the Tribunal had erred by denying me procedural fairness in respect of that issue.  If I would provide a submission prior to RRT decision, I believe that I would have a different decision.

2.         The Tribunal did not give to the applicants before the hearing the independent country information that it had about India.  The Tribunal used this information (RRT decision record pages 12 to 13).  This was against section 424A of the Migration Act 1958.

3.         The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India.  The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.

10                  In respect of ground 1, his Honour found that the complaint was not made out as a matter of fact.  Firstly, at no point did the Tribunal serve on the appellant a written notice pursuant to s 424A of the Migration Act 1958 (Cth) (“the Act”), preferring instead to give a verbal notification, pursuant to s 424AA, of a number of matters which it considered fell within the scope of that provision.  Secondly, the Tribunal complied with its statutory obligations in this regard, and there was no evidence that suggested that the appellant sought any additional time to provide written submissions to respond to the matters that were notified to him under s 424AA.

11                  In respect of ground 2, his Honour concluded that neither s 424A nor s 424AA required the Tribunal to notify an applicant of independent country information, relying upon  SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415; [2009] FCAFC 46.

12                  In respect of ground 3, his Honour observed that the Tribunal had properly considered whether it would be reasonable for the appellant to relocate within India.  Having rejected the appellant’s claims to fear persecution in India, whether in his home locale, or elsewhere, the Tribunal had no need to consider the potential application of s 91R(2) of the Act.

13                  Finally, in relation to an allegation raised by the appellant in an affidavit he filed, which was to the effect that the Tribunal failed to investigate his claims, his Honour observed that there was no general duty on the part of the Tribunal to make enquiries, but he agreed that a failure to make an obvious enquiry about a critical fact which could be easily ascertained could constitute a failure to conduct a proper review under the Act and therefore a constructive failure to exercise jurisdiction, relying upon Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25].  However, his Honour found that no such circumstances arose in the appellant’s case.

14                  The Federal Magistrate accordingly dismissed the appellant’s application for want of jurisdictional error.

The CONDUCT OF PRESENT APPEAL

15                  On 26 March 2010, the appellant filed a notice of appeal in this Court which alleged that:

1.         His honors judgment delivered on the 11 March 2010 failed to find the error of law, jurisdictional error, procedural fairness and relief under section 39B of the judiciary Act 1903.

2.         The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.

3.         The Hon. FM failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.

            [Errors in original]

16                  At the hearing of the appeal before me on 25 May 2010, the appellant appeared in person, unrepresented, but assisted by an interpreter.  Ms Johnson appeared for the Minister.

17                  Aside from a query by the appellant as to why the hearing before the Federal Magistrate had been re-scheduled, the appellant did not make any oral submissions.  I advised the appellant that his concern about the re-scheduling was not relevant to the present appeal proceedings.

18                  Ms Johnson relied upon the outline of written submissions that had been filed on behalf of the Minister.

consideration

19                  None of the grounds raised in the appellant’s notice of appeal was raised before the Federal Magistrate – all of those grounds were directed to breaches of s 424A and a failure to properly apply s 91R(2) of the Act.  The authorities clearly establish that leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so:  see O’Brien v Komesaroff (1982) 150 CLR 310 at 319 and Branir Pty Ltd v Owston Nominees [No 2] Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [38].  Nonetheless, since the appellant is unrepresented, I consider it is in the interests of justice that I should examine the grounds raised in his notice of appeal.

20                  At the outset of that examination, it is appropriate to observe that the appellant’s grounds of appeal are quite formulaic in their terms and they are similar, if not identical to, the grounds of appeal that have been used before in other migration appeals, including a number of appeals before me in this sittings:  see SZKNA v Minister for Immigration and Citizenship [2007] FCA 1806 at [10]; SZOAR v Minister for Immigration and Citizenship [2010] FCA 777 and SZNDJ v Minister for Immigration and Citizenship [2010] FCA 778.  Nonetheless, I have attempted to identify whether any of the grounds raises any apparent error on the part of the Federal Magistrate.

21                  Turning to the first ground, because of the unparticularised and general nature of it, it is not possible for me to even begin to assess whether the Federal Magistrate did in fact make any such errors.  The appellant’s first ground of appeal must therefore be rejected.

22                  The appellant’s second ground of appeal asserts that the Federal Magistrate dismissed his application without considering the legal and factual errors contained in the decision of the Tribunal.  This ground of appeal is also general and unparticularised.  The appellant has not pointed to any error in the Federal Magistrate’s reasons, nor any specific legal error in the Tribunal’s decision.  Furthermore, I consider it is clear from the reasons for decision of the Federal Magistrate that each of the grounds of review raised by the appellant was dealt with in a clear and comprehensive manner.  As to the assertion there were factual errors in the Tribunal’s decisions, there is clear authority that such errors cannot, without more, amount to jurisdictional error:  see Abebe v Commonwealth (1999) 197 CLR 510 at 560; [1999] HCA 14 at [137].  The appellant’s second ground of appeal must therefore be rejected.

23                  As to the appellant’s third ground of appeal it, too, is unparticularised and in the most general of terms.  Moreover, whether the Tribunal’s decision was “unjust” and “made without taking into account … of [his] circumstances …” is redolent of a merits review which, of course, is not open to be reviewed on an appeal to this Court.  Furthermore, these are matters that fall squarely within the exclusive fact-finding role of the Tribunal:  see, eg NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9].  The appellant’s third ground of appeal must also be rejected.

24                  Finally, in case there may be some error in the Federal Magistrate’s decision that falls within these general and unparticularised grounds of appeal, I have examined the Federal Magistrate’s reasons (summarised at [10] to [13] above) and I cannot detect any such error in them.

conclusion

25                  For these reasons, I reject all of the appellant’s grounds of appeal.  It follows that this appeal must be dismissed.  I so order.  I will hear the parties on the question of costs.

Associate:

Dated:         23 July 2010