SZEJN v Minister for Immigration and Multicultural and Indigenous Affairs

Federal Court of Australia|2005-09-20|Before: Jacobson J

REASONS FOR JUDGMENT 1. This is an appeal from a decision of Federal Magistrate Nichols given on 23 June 2005 dismissing an application for review of a decision of the Refugee Review Tribunal ("RRT") handed down on 19 August 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

Background 2. The applicant is a citizen of India. In his protection visa application he claimed that he left India and, later, Malaysia, because he had financial debts in Malaysia and/or for Hindu ethnic reasons. 3. He claimed that Hindus were not tolerated in Malaysia and that he would be arrested and put in prison. The RRT observed that this seemed to be a claim made in relation to Malaysia rather than India. 4. The RRT asked the appellant about the Hindu ethnic reasons which he relied upon and he told the RRT that this referred to his brother's death in India in 1997. This was either different from, or probably an expansion of what appeared in the protection visa application and the RRT said that it preferred the appellant's oral evidence to that which was contained in the protection visa application because the evidence was given directly to the RRT under oath and the RRT had an opportunity to explore it. 5. In a written statement in support of the application before the RRT the appellant claimed that he was from a low caste in India and that if members of his caste were not undertakers they would be killed and punished. The RRT rejected this because there was no independent country information before the RRT to support it. The RRT also said that nothing submitted by the appellant supported that assertion and the appellant's own experience did not support it because his uncle, who was of the same caste, was employed as a government teacher. 6. The appellant claimed, and the RRT accepted, that the appellant left Malaysia only because he and his business partners were unable to repay debts to money lenders who had threatened them. However, the RRT observed that the appellant is a citizen of India and it assessed his claim to have a well found fear of persecution in that country rather than in Malaysia. The RRT observed that there was nothing to suggest that the appellant's Malaysian creditors would pursue him to India and in any event it found that the claim did not have a convention nexus. 7. As to the claims which were directly connected with his Indian nationality and his claimed fear of persecution there, the RRT accepted that the appellant was from a low caste. However, the RRT found that there was nothing in the matters put to the RRT that satisfied the test of persecution within the meaning of the Convention and within section 91R(1) of the Migration Act 1958 (Cth) ("the Act"). 8. The RRT accepted that the appellant's brother was killed in a bomb blast in 1997 and that the appellant feels unsafe in India, but the RRT found that the hardship and dangers of a person caught up in civil disturbance does not amount to persecution within the meaning of the Convention.

Decision of the Federal Magistrate 9. Federal Magistrate Nicholls found that there was no jurisdictional error in the RRT's decision and dismissed the application on 23 June 2005. The learned Federal Magistrate noted at [4] of his reasons that the application was unparticularised and"identical to the formulaic claims made in a number of applications often seen before the court". 10. The Federal Magistrate referred to the application and to the amended and further amended application filed by the appellant. His Honour distilled from those documents four principal grounds which he addressed in turn. 11. The first ground was that the RRT did not properly consider the appellant's claimed fear of persecution based on his membership of a particular social group, namely that he was a low caste Hindu. At [10] of his reasons for judgment the Federal Magistrate noted that the RRT specifically addressed the various aspects of this claim and that the RRT rejected it. 12. The second ground was that the RRT's reasoning was irrational or illogical. The learned magistrate noted authority for the proposition that this of itself does not suffice to show jurisdictional error; see VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [16]-[19]. Furthermore, his Honour found that there was nothing in the material before him to show any illogical or irrational reasoning. 13. The third ground was that the RRT failed to observe "Migration Act procedures", but as his Honour observed, the appellant did not provide any details to support the complaint. The learned magistrate concluded that the RRT had dealt with each of the appellant's claims and had given him an opportunity to comment on each of them. His Honour also found that the RRT had properly considered all of the appellant's claims in relation to India, which was his country of nationality. 14. The learned magistrate dealt with each of the ways in which the appellant complained of a failure to observe Migration Act procedures in [12] of his reasons for judgment. 15. Finally, his Honour referred to the claim that the RRT did not consider the appellant's claims to be genuine, and he observed that this constituted "impermissible merits review". His Honour concluded by saying that he could see no error on the part of the RRT, let alone jurisdictional error.

Discussion 16. The notice of appeal filed against the decision of the Federal Magistrate is in a form which I have seen on many occasions. It contains bare assertions and references to well-known authorities, without relating them to the facts of the case. It does not disclose any arguable ground of appeal but I will deal very briefly with each of the grounds raised. 17. The first purported ground is a bare assertion that the Federal Magistrate failed to find an error of law or jurisdictional error. This is not a ground of appeal because it is unparticularised. 18. The second ground relies on what is said to be a similar judgment of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601. This ground was not advanced by the appellant in his application before the Federal Magistrate. In any event, the appellant provided no evidence to bring himself within the principles stated by the High Court in that case; see NADR v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 465. 19. The third ground was merely a reference to a decision of the High Court in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 ("Plaintiff S157"). However, as was submitted on behalf of the Minister, the mere reference to that decision does not establish that the decision under review was infected by jurisdictional error. 20. The fourth purported ground refers to a decision of this court in SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74. The same comments as I made about the decision in Plaintiff S157 apply to this ground. 21. On 11 August 2005 a document entitled "An Amended Notice of Appeal" was received in the Registry. The document is not in the form of a notice of appeal but Ms Watson, for the Minister, very fairly makes no objection to the document on that basis. 22. The appellant appeared before me this morning in person. He told me that the amended notice of appeal says everything that he wants to say in support of his appeal. He was assisted by a Tamil interpreter this morning. 23. The document made for the first time an assertion that the appellant converted from the Hindu religion to Christianity. That was not a claim which was made before the delegate or the RRT nor was it raised before the Federal Magistrate. The appellant told me this morning that he forgot to mention this fact in his written statement. However, it is plain that this cannot amount to error in the way in which the claim was dealt with in the RRT or on the application for review before the Federal Magistrate. 24. The Amended Notice of Appeal also appears to raise as an issue the fact that the appellant did not have an interpreter before the RRT. However, the response to the hearing invitation signed by the appellant on 16 June 2004 stated that the appellant did not need an interpreter. The appellant told me this morning that he had been advised by his migration agent before attending the hearing that he would be asked simple questions and that he did not need to have an interpreter. He told me that he could not follow the proceeding in the RRT or give a proper explanation. 25. Notwithstanding this, no complaint was made about the question of interpretation before the RRT, nor when the appellant appeared before the Federal Magistrate; nor does there appear to have been any such complaint in his further amended application in that court. This is so despite the fact the appellant was assisted by a Tamil interpreter at the hearing before the Federal Magistrate as appears from [5] of the Federal Magistrate's reasons for judgment. 26. Moreover, as appears from the Federal Magistrate's judgment at [8], the appellant had the benefit of a lawyer under the court's legal advice scheme. The Federal Magistrate observed that there was nothing put before him as to why the appellant did not pursue the issue with the panel lawyer about his intention to obtain a copy of the tape of the hearing and to present it to the court. Importantly, the Federal Magistrate said at [8] "Further, the applicant was not able to explain how the tape or a transcript would assist him now". 27. In light of the history of the matter I do not see how this purported ground can be raised as a ground of appeal. 28. As Ms Watson for the Minister observed, the RRTs decision in relation to the claim to have a well-founded fear of persecution in India depended upon country information and upon the appellant's own evidence about the treatment of his caste. His claim to have a well founded fear of persecution because of his low caste was in substance the only claim raised against India as the country of nationality and the decision on these matters were matters of fact for the RRT. 29. Finally, I raised with Ms Watson the question of whether the RRT preference for the appellant's oral evidence over the information contained in his protection visa application raised a question of the application of the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. I am satisfied that the decision of the High Court has no application. It turned on the failure of the RRT to provide written particulars of adverse information which the RRT considered to be the reason or part of the reason for affirming the decision under review. 30. In the present case the RRT accepted the oral evidence given at the hearing before it. It did not consider that the information in the protection visa application was adverse information. It was not a reason for affirming the decision under review. I accept Ms Watson's submission that there was nothing adverse in the way in which the information in the protection visa application was used by the RRT. 31. I have taken into account the fact that the appellant is not legally represented. I have given the appeal close consideration but in my view it is plain that there is no error in the decision of the Federal Magistrate nor can I see any jurisdictional error in the decision of the RRT. For those reasons the orders I will make are firstly that the appeal be dismissed. 32. Secondly, I order the appellant to pay the first respondent's costs of the appeal fixed pursuant to the rules in the amount of $2,400. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Solicitor for the First Respondent: Australian Government Solicitor

Date of Hearing: 20 September 2005

Date of Judgment: 20 September 2005

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