FEDERAL COURT OF AUSTRALIA

SZOUA v Minister for Immigration & Citizenship [2011] FCA 918

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant is a Russian citizen, who claims to be entitled to a protection (class XA) visa because, he contends, he will suffer discrimination and harassment if he were to return to Russia. His case at its highest is that he fears persecution in Russia on the basis of his membership of a particular social group and his real or imputed political opinion. In submissions made to this Court he particularised the ground of persecution as “non-service in the military”.

2    The appellant arrived in Australia on 3 November 2009 on a Russian passport and a subclass 676 tourist visa. Two days later he applied to the first respondent (“the Minister”) for a protection visa but a delegate of the Minister rejected his application. Upon a review of that decision on the merits, the second respondent (“the tribunal”) affirmed the Minister’s decision. The appellant then applied to the Federal Magistrates Court for a review of the tribunal’s decision under s 476 of the Migration Act 1958 (Cth) (“the Act”). The federal magistrate found no jurisdictional error in the tribunal’s decision and dismissed the application. This is an appeal from that decision.

Eligibility for a protection visa

3    To qualify for a protection visa the appellant had to prove (to the Minister and then to the tribunal) that he is a refugee to whom Australia has protection obligations under the Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951, as amended by the 1967 Refugees Protocol (collectively, “the Convention”): s 36(2) of the Act. Article 1A(2) of the Convention relevantly defines a “refugee” as a 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 …

4    Section 91R(1) provides that the Convention does not apply unless:

(a)    the reason(s) is/are the essential and significant reason(s) for the persecution; and

(a)    the persecution involves serious harm to the person; and

(b)    the persecution involves systematic and discriminatory conduct.

5    “Serious harm” is defined in a non-exhaustive way for the purposes of s 91R(1)(b): see s 91R(2). Relevantly it includes: (b) physical harassment; (c) physical ill-treatment; (d) “significant economic hardship that threatens the person’s capacity to subsist”; and (f) “denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist”.

6    The appellant failed to satisfy the Minister, and then the tribunal, that he was a person to whom Australia has protection obligations under the Convention.

The application for a protection visa

7    The appellant’s application for protection was based on his contention that he was diagnosed with a psychotic condition during medical checks at the induction for compulsory military service, and consequently struck off the military register. That contention is verified by a copy of his military record and passport, provided with his visa application. In a statement attached to the application the appellant indicated that he did not want to return to Russia for various reasons, many of which have no bearing on his claim for protection under the Act. The relevant allegation is fear of harassment by Russian authorities and discrimination by prospective employers on account of his medical exemption from military service. He was not concerned about conscription; given the medical exemption, he was satisfied that the military would not attempt to conscript him. Still, he feared that he would be sent back to a psychiatric clinic by the military office, even though, he insisted, “I’m not sick”.

The tribunal hearing

8    The appellant was not assisted by a migration agent in the tribunal proceedings, although he did have the assistance of a Russian interpreter.

9    The appellant provided the tribunal with a letter from a clinical psychologist which indicated that he was suffering psychotic symptoms at the time, exacerbated by his experiences in Russia. Despite this, the appellant denied he was suffering from a psychological order and the tribunal determined that he was capable of participating effectively in the hearing.

10    The appellant failed to persuade the tribunal member that there was a real chance that he would be persecuted for a Convention reason if he were to return to Russia. The tribunal considered, amongst other things, the statements he produced from his parents, his American friend, and the manager of a homeless men’s refuge in Sydney where he stayed. The tribunal remarked that each differed from the appellant’s own evidence in significant respects and also noted the differences between the parents’ accounts.

11    The tribunal member observed that the appellant had obtained several jobs since his military discharge, despite his claim that the adverse psychological assessment would preclude him from obtaining work. The tribunal acknowledged that he had difficulty holding down a steady job in Russia but attributed that to his psychological problems. It did not consider that there was a real chance that he would be discriminated against “in such a way or to such an extent as to amount to persecution for the purposes of the Convention” because of the notation on his identity card indicating he is exempt from military service. It referred to the high percentage of Russians eligible for military service who receive exemptions or deferments (including for medical reasons) disclosed by independent country information. It indicated to the appellant that that made it difficult to accept that there was a real chance he would have problems finding work because of his exemption on medical grounds. According to the decision record, which is the only evidence before me of what transpired in the tribunal, the appellant agreed, although at the same time he questioned the accuracy of the figures.

12    The tribunal member repeatedly asked the appellant to point to a relevant Convention reason for his apparent fear of persecution. At one point he claimed he was a refugee because of his political opinion, describing himself as a person who had to speak out. When asked what he meant he said that Mormon leaders employed the same methods as the mafia and expressed fears that Russia was on the brink of a return to “a Stalin-like regime” where people would be killed without due process. He also described several isolated incidents of assault and harassment that he said amounted to persecution by Russian authorities. Due to inconsistencies in the evidence, the tribunal questioned the appellant’s credibility and rejected many of his claims. It accepted that (like many others) he was unhappy about the current situation in Russia, but it did not accept that the evidence established a well-founded fear of persecution within the terms of the Convention.

The proceeding before the federal magistrate

13    The appellant applied to the Federal Magistrates Court for an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476. That jurisdiction is the same jurisdiction as the High Court is given by s 75(v) of the Constitution and includes the power to order writs of prohibition and mandamus. The decision of the tribunal was otherwise unchallengeable as a “privative clause decision” (see s 474 of the Act). Consequently, the appellant could only succeed if he were able to show that the tribunal’s decision was affected by jurisdictional error. The grounds of the show cause application raised no such error and, for this reason, it is unsurprising that the federal magistrate found against him.

14    The application was written in broken English but in the Federal Magistrates Court, as in the tribunal, the appellant was assisted by a Russian interpreter. The so-called grounds consisted of a rambling mixture of personal background, a transcription of Article 1A(2) of the Convention, a protestation that he had provided enough evidence to be accepted as a refugee and an argument with the conclusions of fact reached by the tribunal interspersed with extracts from the tribunal’s decision.

15    The federal magistrate observed that the pleaded grounds raised no jurisdictional error, and noted that nothing the appellant said to the Court took the matter any further. His Honour was unable to discern any jurisdictional error in the decision. He noted that the tribunal had invited the appellant to a hearing in accordance with s 425 of the Act. He said that on the material before the Court the tribunal complied with the relevant statutory and regulatory requirements in this invitation: ss 425, 425A, 441A(4), 441C(4) of the Act and cl 4.35D(b) of the Migration Regulations 1994 (Cth). He said that on the tribunal’s unchallenged account of the hearing, the tribunal exposed all the issues determinative of the review and gave the appellant an opportunity to respond. He found that it dealt with all the material put before it, addressed all aspects of the claims as they emerged, its reasons were cogent, and its findings reasonably open. He noted that the fact that “the Tribunal was not persuaded to the [appellant’s] cause even in light of this ‘proof’ does not, on its own, reveal legal error”. He also found no error in the tribunal’s assessment of the appellant’s capacity to participate in the hearing.

The appeal

16    An appeal to this Court from the Federal Magistrates Court is in the nature of a rehearing, but error must still be shown: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. The notice of appeal raises no error on the part of the federal magistrate. Rather, it reproduces all of the “grounds” included in the appellant’s show cause application. The federal magistrate was right to conclude that they raised no jurisdictional error.

17    On 17 May 2011, without leave, the appellant filed a “notice of amended appeal” in which he added six grounds, none of which was apparently raised before the federal magistrate. It is not clear whether leave is required but the Minister did not oppose a grant of leave if it were and so I granted leave, if necessary. The additional grounds read (without alteration):

9.    The Tribunals below failed to consider or give reasons of the Appelant broader status as a refugee within the relevant provisions of the International Convention of Civil and Political Rights treaty.

10.    The Tribunals below erred in their reasoning in finding i have nothink to fear in Russia. Mr. Short used Dawson J (Chan at 396).

11.    The Tribunals below erred in thier reasoning in finding i not under Article 1A(2) of The Convention.

12.    The Refugee Review Tribunal below erred in their in finding i will not be persecuted for one of the Convention reasons.

13.    The Tribunals below erred in thier reasoning. in finding i does not “a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the refugees convention as amended by the refugees protocol” 36(2)(a)

14.    The Tribunals below erred in thier reasoning in finding my past harassment have no “Systematic conduct” or selective harassment. (Minister For Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 [89] - [100] per McHugh J).

18    The appellant also filed submissions. Those submissions addressed only the additional grounds and at the hearing the appellant confirmed, through the interpreter, that he wished only to rely on those grounds. There was nothing in his presentation that caused me to doubt his capacity to participate in the proceeding.

19    Although the Minister did not oppose leave being granted to file the amended notice of appeal, he did oppose the grant of leave to raise the new grounds. He argued that it is “not expedient in the interests of justice” to allow them to be argued as they have no reasonable prospects of success. In VAUX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48] the Full Court said:

[46]    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: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

[47]    In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

[48]    The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

20    Strictly, the Minister is correct. These grounds for challenging the tribunal’s decision were not put below and no explanation was provided. Still, with the exception of the first ground, the points being made were not materially different from the points made to the federal magistrate. In all the circumstances, I would grant the appellant leave but dismiss the appeal as I am satisfied, for the reasons that follow, that there is no substance to any of the grounds.

21    Ground 9 is misconceived. The tribunal’s task was to consider whether the appellant was a refugee within the meaning of the Convention and to apply the relevant provisions of the Act, not the International Covenant (scil.) on Civil and Political Rights (“ICCPR”). In his submissions the appellant merely referred to Articles 7 and 9.1 of the ICCPR, without advancing any reason why the federal magistrate ought to have had regard to them.

22    Grounds 10-14 do no more than attack the tribunal’s factual findings.

23    A wrong finding of fact is not a jurisdictional error. Fact-finding is the task of the tribunal, not the Court. As Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (cited with approval by the whole of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, 291):

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.

24    The reference to Dawson J in Chan in ground 10 is presumably a reference to the remarks of his Honour in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 396 that:

There must be a state of mind – fear of being persecuted – and a basis – well-founded – for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.

25    In oral submissions the appellant explained that what he meant by this ground was that there was in fact a sufficient foundation for his fear and the tribunal was wrong to find otherwise. In his written submissions he referred to a human rights report from the internet that he claimed supported his case.

26    The internet reference was not, however, in evidence and the extract in the submissions did not in fact support his particular claim. More importantly, the question of whether there was a sufficient foundation for his fear was a question of fact for the tribunal alone. The adverse resolution of that question does not give rise to jurisdictional error.

27    In oral submissions the appellant contended that the tribunal did not put enough weight on the documentary evidence, especially the military book recording the exemption from military service which, he said, must be produced when seeking employment. But even if the contention were right, it does not give rise to jurisdictional error. The weight to be attached to any piece of evidence is entirely a matter for the tribunal.

28    The appellant tried hard to persuade the Court that he was a wronged man whom the tribunal should have believed. Before me he said he was really scared of “medical persecution” in the future, a claim that appears to differ from the claim he made to the tribunal, although it accords with what he said in his visa application about the government sending him back to the psychiatric clinic. However, as the Minister pointed out, the appellant did not make a claim that people with mental illness are a particular social group who suffer persecution in Russia and there was no evidence before the tribunal that that is the case. Whatever fears the appellant may have, his appeal does not reveal legal, let alone jurisdictional, error on the part of the tribunal.

29    Nothing the appellant put casts doubt on the validity of the federal magistrate’s conclusions.

Conclusion

30    For these reasons the appeal must be dismissed. There is no reason why costs should not follow the event.

Associate:

Dated:    12 August 2011