FEDERAL COURT OF AUSTRALIA

SZQLR v Minister for Immigration and Citizenship [2012] FCA 541

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

INTRODUCTION

1    This is an appeal from a judgment of a Federal Magistrate published as SZQLR v Minister for Immigration and Citizenship [2012] FMCA 141, in which the Federal Magistrate dismissed the appellant’s application for judicial review. The Federal Magistrate reviewed a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the first respondent (“the delegate”) not to grant the appellant a Protection (Class XA) visa (“Protection visa”).

2    The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by the appellant was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) (“the Migration Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3    The task of this Court is to determine whether the judgment of the Federal Magistrate who determined the appellant’s judicial review proceedings, is affected by appealable error.

4    For the reasons that I will now explain, I am satisfied that no error on the part of the Federal Magistrate has been demonstrated and that the appeal should be dismissed.

BACKGROUND

5    The appellant is a male citizen of India who arrived in Australia on 9 June 2010. Shortly after his arrival, the appellant lodged an application for a Protection visa with the Department of Immigration and Citizenship, on the grounds that he feared harm and persecution in India because of his political activity. The appellant claimed that:

    he is an ex-Shiv Sena Party member, who left that party;

    upon leaving Shiv Sena, he became a member of the Samajwadi party, which is a secular political party;

    he was warned about his decision to join the Samawajdi party by a local Shiv Sena leader, and urged to return to Shiv Sena;

    he was threatened with violence as a result of refusing to continue to pay donations to Shiv Sena; and

    a customer of his, whom he took to court over a fake cheque, had made a deal with Shiv Sena, after which members of Shiv Sena came to his business and demanded party donations and told him that if he wished to continue his business he would have to pay them money.

6    The delegate refused the appellant’s application for a Protection visa. By a decision made on 27 June 2011, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa.

The Tribunal’s Decision

7    The Tribunal found that the appellant was a credible witness, and accepted the appellant’s claims of harassment on a number of occasions, including demands that he make donations to Shiv Sena. The Tribunal accepted that the appellant had been hit on two occasions with sticks by those making the demands, but found that the appellant was not injured. The Tribunal also accepted that the demands for donations were made because the appellant had been a member of Shiv Sena, and had made donations in the past.

8    However, the Tribunal found that despite the passage of many years since the commencement of the harassment, neither Shiv Sena nor the disgruntled customer of the appellant had seriously harmed the appellant. The Tribunal considered that there had been ample time since the threats against the appellant were made for those who made them to have acted on their threats. For that reason, the Tribunal did not accept that the threats made by Shiv Sena or the disgruntled customer gave rise to a real chance of serious harm being occasioned to the appellant in the reasonably foreseeable future.

9     The Tribunal was of the view that the past occasions of harassment did not constitute serious harm for the purposes of s 91R(1)(b) of the Migration Act. Consequently, the Tribunal did not accept that the appellant’s fear of persecution is well founded.

10    In any event, the Tribunal found the appellant’s claims to be localised within the appellant’s city of residence, and that it would be reasonable for the appellant to relocate within India.

THE FEDERAL MAGISTRATE’S DECISION

11    On 22 July 2011, the appellant lodged an application in the Federal Magistrates Court agitating the following grounds:

(i)    The Tribunal failed to [sic] integer of the applicant’s claims, in failing to consider whether or not a liberal Hindu was at risk of harm from radical Hindus, and [sic] not able to access effective protection whilst the Tribunal formed the view that the applicant was a credible witness.

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

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

(iv)    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.

12    In relation to the first ground, the Federal Magistrate held at [15] of her Honour’s decision, that the applicant had not previously, before the Tribunal or otherwise, described himself as a “liberal Hindu”. As such, while the Federal Magistrate found the Tribunal may be obliged to consider a claim not expressly made by the appellant, such a claim must be readily discernible from the material. Her Honour held that no claim was made either expressly or by implication that the appellant feared persecution as a liberal Hindu.

13    At [16], the Federal Magistrate rejected the second ground. The Federal Magistrate was satisfied that the Tribunal applied the relevant test under s 91R of the Migration Act to the facts in reaching its conclusion on that question.

14    In dismissing the appellant’s third and fourth grounds, at [17] – [18], the Federal Magistrate found that those grounds raised what were essentially allegations that the Tribunal reached a wrong conclusion, and therefore went to the merits of the Tribunal’s decision. As such, the Federal Magistrate found that both of those grounds fell outside the ambit of judicial review.

the appeal to this court

15     On 1 March 2012, the appellant filed a Notice of Appeal in this Court which contained the following stated grounds of appeal:

(i)    The Federal Magistrate failed to consider that the Tribunal acted in a manifestly unreasonable way with the applicant’s claim and ignoring [sic] the aspects of persecution and harm in terms of s 91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation; and

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

16    The second ground in the notice of appeal is not a proper ground of appeal. I agree with the submission of the Minister that it fails to identify any case of error on the part of the learned Federal Magistrate or any proper basis to assert that the Federal Magistrate failed to consider the errors that the appellant alleged were contained in the Tribunal’s decision.

17    The appellant’s first ground of appeal raises a new ground not raised before the Federal Magistrates’ Court. To raise a new ground, the appellant requires the leave of the Court. The relevant principles relating to the raising of new grounds of appeal were the subject of detailed consideration in SZKCQ v The Minister for Immigration and Citizenship [2009] FCA 578 at [7] – [11] (Flick J). Leave should only be granted to raise new grounds on appeal where it is expedient in the interests of justice. For a ground to be argued and determined for the first time on appeal, it must be shown that the ground has a reasonable prospect of success.

18    Ground one is badly drafted and highly ambiguous. In substance, it seems to raise a complaint based upon an assertion that the Federal Magistrate failed to consider that the Tribunal had ignored the fear of persecution claimed by the appellant. That assertion is without merit. The Tribunal did not ignore the appellant’s claimed fear of persecution and largely accepted the factual basis for that claim. The Tribunal did, however, come to the view that the appellant did not face a real chance of being subjected to serious harm of the kind that s 91R(1)(b) of the Migration Act contemplates. The Tribunal had a logical basis for doing so. The Tribunal considered that there had been ample time since the threats against the appellant were made for those threats to have eventuated if, in fact, there was a real chance of serious harm being occasioned to the appellant.

19    Neither in the grounds of appeal, nor in any submission made by the appellant before the Court, has the appellant identified how he asserts that the Tribunal misapplied s 91R of the Migration Act. It is not apparent that s 91R was not correctly applied by the Tribunal. Even if there was some error in the Tribunal’s application of s 91R, the relocation finding made by the Tribunal provides an alternative and independent basis for affirming the delegate’s decision: SZMCA v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [122] (Tracey and Foster JJ).

20     I agree with the Minister’s submission that the appellant’s description in ground one, of the Tribunal’s reasoning as being “manifestly unreasonable”, should be viewed as merely an emphatic way of expressing disagreement with it: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] (Gleeson CJ and McHugh J). In substance, this part of ground one amounts to an impermissible invitation to the Court to review the merits of the Tribunal’s decision. If it were to be viewed as an allegation raising a want of logicality, there is no basis upon which it could be said that the Tribunal’s decision was so unreasonable that no reasonable person could have come to it.

21    For those reasons, ground one of the appellant’s notice of appeal has no prospect of success, and leave to raise it must be refused. As I have found no appealable error, the appeal must be dismissed. The appellant should pay the Minister’s costs of the appeal. I will make orders to that effect.

Associate:

Dated:    28 May 2012