FEDERAL COURT OF AUSTRALIA

SZQKP v Minister for Immigration and Citizenship [2012] FCA 284

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The First Appellant pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    The appellants appeal from a decision of Raphael FM made on 30 November 2011 (‘the decision’) which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal’s decision affirmed a decision of a delegate of the first respondent (‘the Minister’) to refuse the appellants’ protection visa application.

BACKGROUND

2    The appellants are citizens of India. The first appellant arrived in Australia on 20 February 2006. The first appellant travelled to Australia on a Long Stay Business (Class UC) visa. On 13 January 2009 a further Long Stay Business (Class UC) visa, valid until October 2010, was granted to the first appellant. The second appellant arrived in Australia on 27 March 2008 as a holder of a Class UC visa.

3    On 15 October 2010 the first and second appellants applied for visas under the Employer Nomination Scheme. Such applications were refused on 25 March 2011.

4    On 19 January 2011 the appellants lodged an application for protection visas with the Department of Immigration and Citizenship relating to the first appellant, his wife and their infant daughter who was then aged 4 years and 4 months. A delegate of the first respondent refused the application for protection visas on 10 March 2011. On 6 April 2011 the appellants applied to the Tribunal for a review of that decision.

5    The first appellant claimed he had been born into a Scheduled Caste (a historically disadvantaged group of people who are given specific recognition under Indian law) Hindu family in Goa in West Bengal and that as a result he had suffered discrimination. The first appellant indicated he was a Tandoori chef and had worked as such in India until September 2001 when he travelled to work in Bahrain. In May 2003 the first appellant moved to Singapore to work.

6    The first appellant claimed he had commenced work in Australia in 2006, having been issued with a visa issued under s 457 of the Migration Act 1958 (Cth) (‘the Act’) which was sponsored by a restaurant; that he had worked in excess of 80 hours and did not receive any wages or entitlements and that when he had asked for wages he was treated badly and threatened with cancellation of his visa and that he then went to work in another restaurant and applied for permanent residency but his employer would only support the application in return for a payment of $20,000. The first appellant further claimed that the employer also did not pay wages properly and the first appellant could not afford to live and so he left.

7    At the time of the initial application for a protection visa the first appellant had a pregnant wife and daughter. He claimed that his family had nowhere to return to in India. The first appellant claimed to be depressed and traumatised by his maltreatment in his employment and by the violence and unrest he had seen in India. The first appellant feared returning there.

8    At the interview with the delegate the first appellant elaborated on these claims and indicated that members of his caste were not allowed into restaurants and would be mistreated by others. The first appellant also claimed he or his wife would be killed if they returned.

9    The delegate was not satisfied that the first appellant and his family were owed protection obligations for the purposes of s 26 of the Act and criteria 866.221 of the Migration Regulations 1994, and concluded that the first appellant did not qualify for a Protection (Class XA) visa.

REFUGEE REVIEW TRIBUNAL

10    By application for review filed on 6 April 2011 the first appellant, on behalf of himself and his family unit, applied to the Tribunal for a review of the delegate’s decision.

11    The appellants attended a Tribunal hearing on 7 June 2011 to give evidence and present arguments. The Tribunal’s decision records the first appellant’s claim that he belonged to a Scheduled Caste and was a member of the Hindu religion. Such caste was said to be a lower caste. The first appellant claimed to have come from a poor family and because of this could not attend school. However, despite this obstacle he completed nine years of schooling. Although he has not undertaken any formal training as a chef he worked for ten years under the supervision of a famous chef at a hotel and he claims to now be a good chef.

12    The Tribunal noted that the appellant had moved to Bahrain but thereafter returned to India and was working in the same chef’s position at the time he was asked to work in Singapore.

13    The Tribunal accepted that the first appellant may have suffered discrimination arising from his caste by being unable to attend school or buy books and shoes and also during his employment at the hotel. The Tribunal also accepted the evidence of the first appellant’s spouse who referred to her inability to attend school. The Tribunal also accepted that if the appellants were to return to India they could experience some degree of discrimination in terms of employment and access to social services. The Tribunal concluded that such discrimination would not amount to serious harm.

14    Nevertheless the Tribunal rejected the appellants’ claim that they would be denied access to education, social services, or employment if they were required to return to India. The Tribunal noted that the first appellant had been able to complete his education, train as a chef and work in his profession both in India and overseas despite being a member of a Scheduled Caste.

15    The Tribunal also did not accept that the appellants were likely to experience physical violence or harm or threats of harm if they were to return to India and noted that the only instance of physical harm that the first appellant relied upon occurred more than 20 years previously.

16    The Tribunal noted that although the first appellant claimed that if he travelled to India his luggage and money might be stolen or his child might be abducted because he had no private car to meet him, such concerns did not constitute a real chance of serious harm. The Tribunal also noted that although the first appellant claimed that he would be unable to attend temples and eat in restaurants, steps were being taken to eradicate any discriminatory practices and to address inequalities in India arising out of the caste system. The Tribunal found that even if such events did occur, this would not constitute serious harm.

17    The Tribunal also noted that the first appellant and his wife referred to conflict between parties and political unrest in India. However, the Tribunal noted that the appellants did not have any claimed affiliations to any political party nor had any involvement in political affairs in India and thus did not accept that the family would be targeted because of any actual or imputed political opinion.

18    The Tribunal noted the first appellant claimed that he had been cheated by his employers in Australia. The Tribunal also noted the length of time the appellants had resided in Australia. However the Tribunal did not consider such matters to give rise to any real chance of persecution.

19    The Tribunal noted that it had been informed of the birth of the appellants’ second child. The Tribunal recorded that since there was no primary decision with regard to the child the Tribunal had no jurisdiction in respect of such child.

20    The Tribunal concluded that it was not satisfied that the appellants were persons to whom Australia owed protection under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (‘the Convention’).

FEDERAL MAGISTRATES COURT

21    By application filed on 8 July 2011 the appellants applied for judicial review of the Tribunal decision to the Federal Magistrates Court of Australia. That application contained the following grounds:

1.    My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A as decided by the majority judge of the High Court in SAAP.

2.    The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

3.    The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

22    In answer to the appellants first ground the Federal Magistrate referred to SAAP v Minister for Immigration (2005) 228 CLR 294 and found that the present matter could only come within the context of SAAP in respect of the evidence of the second appellant. However, the Federal Magistrate observed that the Tribunal had accepted the second appellant’s evidence. Accordingly no adverse information arose under s 424A of the Act and the Federal Magistrate found that there was no other adverse information the Tribunal should have put to the appellants. The evidence of the wife did not contain in its terms a ‘rejection, denial or undermining’ of the first appellant’s claims and it followed that no obligation under s 424A arose: see SZBYR v Minister for Immigration (2007) 96 ALD 1. The Federal Magistrate noted that it was not necessary to put the appellants on notice that the Tribunal did not accept the first appellant’s claim that members of his caste are likely to be killed for no reason. Thus the first appellant’s first ground could not succeed.

23    The Federal Magistrate noted that without particulars to the second ground it was impossible for the Court to speculate upon what the first appellant intended by such ground. The Federal Magistrate found that the first appellant’s second ground did not reveal any jurisdictional error.

24    As to the third ground relied upon by the appellants, the Federal Magistrate considered that, contrary to the appellants claim, the Tribunal had addressed the essential jurisdictional fact as to whether the appellants were owed protection with regard to s 91R(1) of the Act.

25    The Federal Magistrate dismissed the appellants’ application.

APPEAL TO THIS COURT

26    On 21 December 2011 the appellants filed a notice of appeal in this Court. That appeal contained the following grounds:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the appellants claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The learned Federal Magistrate has dismissed the case without considering the legal and factual error contained in the decision of the RRT.

SUBMISSIONS

27    Both the first and second appellants appeared unrepresented but assisted by an interpreter.

28    In respect of the first ground of appeal the first appellant submitted that he had two children; that he was of low caste and had been tortured because of his low status; that he was unable to go to any place such as temples; that he could not get access to things which other people had and that because of his increased age he wanted to find a chance to get employment. The first appellant stated that he had told the Federal Magistrate of the above matters.

29    When questioned concerning the claim of torture, he said that while he lived in India homes were burned down and that he had suffered a lot of stress and struggle. He was brought up by a Christian chef and he had travelled to Singapore before coming to Australia. The first appellant stated that he had been in Australia for a period of seven years. Having been further questioned about his allegation of torture the first appellant referred to the death of his uncle’s son and the fact that he, the first appellant, had been kicked and thrown from the top of a multi-level bed in staff quarters where he lived.

30    The second appellant also made submissions through the interpreter. She stated that her husband had been repeatedly tortured and was very poor. She informed the Court that they had married in India in 2003 and that their daughter, who is now 5 years and 6 months of age, was born in India and came to Australia when she was 1½ years of age. She commenced school in Australia in February 2012. The second appellant also told the Court that she now has a son aged 9 months.

CONSIDERATION

31    The Court has considered the grounds of appeal contained in the appellants’ notice of appeal. As to the first ground alleging unreasonableness, the Court notes that such ground was not raised before the Federal Magistrate. Accordingly leave to raise such ground is required when the claim was neither raised nor considered before the Federal Magistrate.

32    Where a matter had not been previously raised for determination, the Court will only allow such a matter to be relied upon provided leave is granted. The appellant must establish that it is expedient in the interests of justice to allow such ground to be raised: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [26]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [163]-[164]. The Court is also required to consider the merits sought to be raised by the ground: see VAAC at [26].

33    The matters sought to be relied upon by the appellants challenge the findings of fact by the Federal Magistrate. The appellants confirmed that the matters raised before this Court were raised before the Federal Magistrate but claimed that the Federal Magistrate did not understand them.

34    Findings of fact cannot be reviewed by this Court: see Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 58 ALD 609 per McHugh J at [67]. Even if the Federal Magistrate erred in his assessment of the facts, no error of law arises: see Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146] and also Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at [20]. That is, there is no error of law disclosed through challenges to decisions on factual grounds.

35    It should also be observed that the Tribunal referred to the factual matters relied upon by the first appellant. The Tribunal noted that although the first appellant had claimed to witness the murder of his uncle’s son, he did not suggest that any attempt had been made to kill him personally in the past, either because of his caste or because of his overseas residence. Further, the incident which he relied upon as indicating persecution when he claimed to be thrown from his bed occurred more than 20 years prior to the Tribunal’s decision. The Tribunal concluded that it was not satisfied that the first appellant had experienced any serious physical harm in the past. The Tribunal concluded that there was no real chance that the first appellant or his family would experience physical violence or harm or threats of such harm as a result of belonging to the Scheduled Caste or as a result of his residence overseas.

36    The Court is satisfied that the challenge which the appellants seek to make in ground 1 of the appeal relates solely to a factual matter. As such no jurisdictional error exists. The Court declines to grant leave for this matter to be argued as it is plain that such ground could not succeed even if a grant of leave were made. The facts relied upon could not amount to ‘persecution’ as defined in s 91R (1) of the Act:

(1)    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)     that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution ; and

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

(c)     the persecution involves systematic and discriminatory conduct.

37    The second ground of appeal is unparticularised and the first appellant was unable to provide any particulars in support of such claim or to explain to the Court what he meant by such ground.

38    The Court has considered the Tribunal’s reasons which demonstrate that the Tribunal considered all the claims of the appellants and of the claimed persecution. No ‘persecution’ as defined exists, and the Tribunal properly considered the facts relied upon by the appellants.

39    Further, there is no basis for the assertion that the decision is unreasonable in the Wednesbury sense: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. It is possible that such ground may have been intended to be included in ground 3 as raised before the Federal Magistrate. If so, the Court dismisses such ground as it is clearly untenable in the absence of any particulars being advanced to support the ground. Even if it were not raised before the Federal Magistrate, the Court would refuse leave to raise such ground since it would be doomed to fail because of the absence of any particularisation of such claims.

40    For the above reasons the Court dismisses the appeal and orders the appellants to pay the costs of the first respondent.

Associate:

Dated:    26 March 2012