SZERX v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Magistrates Court, SZERX & Anor v Minister for Immigration & Anor [2005] FMCA 1732. The appellants appeared in person before me. The sole ground of appeal is that the Federal Magistrate failed to hold that the Refugee Review Tribunal ('the Tribunal') made a jurisdictional error by failing to consider the refugee claim based on the male appellant belonging to a particular social group. The circumstances in which the appellants claimed to be refugees were that the male appellant worked as a stockbroker in India at the Ahmedabad Stock Exchange and his wife was a member of his family. 2 In early 2003, that Exchange had its activities superceded by the Securities and Exchange Board of India in consequence of which the male appellant said that he went into debt both to his employer and to clients who had been affected by the suspension of the Exchange's trading. Initially he claimed that only his employer was seeking to bring unlawful pressure on him to pay the debts due to him. He asserted that his employer, as a broker, had political influence, that the Police were corrupt and that he would need to succumb to the demands which had motivated threats and assaults that he had been subjected to were he to remain in India. 3 Later he claimed that these threats also came from persons from whom he had borrowed money to pay some of the debt owed to his employer. The Tribunal considered the male appellant's claim in some detail having had the benefit of his oral evidence as well as other information that he had provided both to the Tribunal and to the delegate initially. The female appellant is the male appellant's wife and has not put forward an independent claim. During the course of setting out the account of the male appellant's oral evidence the Tribunal referred to an inconsistency that had arisen during the oral evidence between what was said in his original protection visa application and the evidence that he was giving orally to the Tribunal. 4 There is no reference to the protection visa application in the male appellant's application for review to the Tribunal and if the inconsistency were to be regarded as the reason or part of the reason for affirming the decision under review then it is clear that there would have been a failure to comply with s 424A(1) of the Migration Act 1958 (Cth) ('the Act'). The Tribunal's findings and reasons contained relevantly the following consideration: 'The Tribunal has doubts about the applicant's truthfulness because of the inconsistencies in his written and oral evidence as well as the hesitant and, at times, unconvincing manner in which he gave his oral evidence. In any case, even if the Tribunal accepts that the applicant faces serious harm from Mr Mehta and the people he borrowed money from, the Tribunal finds that the reason for the harm he fears is not Convention related. The applicant claims that of the five Convention grounds, political opinion is relevant in case. The applicant claims that because the people he fears have political connections they could get the police to act on their behalf and take action against him or to refuse to help him, and that politicians would not help him. However, even if it is true that the people the applicant fears have political connections and can use those connections to harm him, that does not mean that political opinion is their motivation for inflicting harm upon the applicant. The applicant has not claimed that he has a political opinion or perceived to have a political opinion by Mr Mehta, the finance people or anyone else. The applicant claims that the reason he had problems in the past and the reason he fears he will be harmed in the future, is that he owes money to Mr Mehta and the finance people. The infliction of harm for a failure to pay a debt is not one of the five reasons enunciated in the Convention.' 5 It is important when considering the words chosen by administrative decision-makers who may not be trained lawyers to not phase and analyse those reasons as if they were a judgment of the court, but rather to approach them as an expression of the reasoning process as best the person charged with the duty of giving reasons can articulate what guided him or her to the ultimate conclusion (see: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and Minister for Immigration and Ethnic Affairs v Guo (1997)191 CLR 559 at 576-577). 6 I am satisfied that the Tribunal in referring to its having doubts about the male appellant's truthfulness did not use that as the reason or part of the reason for its decision. It seems to me that, fairly read, the Tribunal's reasoning process is substantively encapsulated in the paragraph that deals with the male appellant's situation if one accepted that he faced serious harm from his former employer, Mr Mehta, and the people from whom he borrowed money. That reasoning process demonstrates that the claim as formulated did not raise a basis on which Australia would owe the appellants any protection obligation under the Geneva Convention Relating to the Status of Refugees of 1951, as amended, as enacted in the Act. 7 None of the claims, as the Tribunal found and as his Honour held, was a Convention ground. The fact that a person may find themselves at risk from former employers, financiers or associates because of financial dealings that they had with such a person does not amount to a well-founded fear of persecution on the ground of political opinion. There was no political opinion expressed by the male appellant at any time, nor was there any political opinion imputed to him or reasonably capable of being imputed to him. As the Tribunal found, the infliction of harm for a failure to pay a debt is not one of the five reasons enunciated in the Convention. 8 It is also important that I consider whether a class of debtors could form a particular social group. The High Court has emphasised repeatedly that it is essential to identify accurately a particular social group to whom the applicant for refugee status can be said to belong: Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at 400 to 401 [36] per Gleeson CJ, Gummow and Kirby JJ. The appellants put forward no basis upon which it could be said that they or either of them was a member of any particular social group, as that expression is understood in the authorities, in respect of whom Australia could owe any protection obligations. Nor did the male appellant advance in his original claim to the Tribunal any basis upon which it could be argued that he was a member of a particular social group. 9 It is not for the Court on review or for the Tribunal itself to seek to make a finding where there has not been a substantial, clearly articulated, argument relying upon established facts put to the Tribunal in support of the claim: NABE v Minister for Immigration (2004) 144 FCR 1 at 17 [55]. 10 A Court or Tribunal entertaining an appeal by way of re-hearing can only exercise its appellate powers if satisfied that there was an error on the part of the primary decision-maker, as Gleeson CJ, Gaudron and Hayne JJ said in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204 [14]. That is because statutory provisions conferring appellate powers given in the case of an appeal by way of re-hearing are construed on the basis that unless there is something to indicate otherwise the power is to be exercised for the correction of error. In this case I am unable to detect any error and the only basis advanced by the male appellant today does not suggest that there was any error in the Tribunal's decision. 11 Lest I am wrong that the Tribunal's expression of doubt as to the male appellant's truthfulness was not a finding, I am satisfied that the conclusion that the infliction of harm for failure to pay a debt was an independent ground used by the Tribunal which was entirely unaffected by any failure to comply with s 424A of the Act and that, therefore, that is a sufficient reason to withhold relief which might otherwise be given SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [231] - [233] per Allsop J [155] per Weinberg J agreeing. For these reasons in my opinion the appeal should be dismissed. 12 The male appellant sought to put before me evidence that he is suffering from tuberculosis and that he seeks to have his medical treatment continued until he has recovered before being required to return to India. As I indicated in rejecting the evidence of that condition, that is not a matter that is admissible on an appeal or is relevant to the exercise of my appellate functions. It may be a matter which the Minister will take into account in exercising any discretion in determining when to return the appellants to their homeland. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.