SZJOP v Minister for Immigration & Citizenship [2008] FCA 166 | Case summary

REASONS FOR JUDGMENT 1 This is an appeal from orders made by Emmett FM on 9 October 2007. Her Honour dismissed an application brought by the appellant for review of a decision of the Refugee Review Tribunal, dated 13 September 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa. 2 The appellant is a citizen of Papua New Guinea ("PNG") who arrived in Australia on 12 February 2006. The essence of her claim to have a well-founded fear of persecution was recorded by the Tribunal in what is referred to as a "summary of written claims". The Tribunal reduced the claims to five bullet points. 3 The principal matter raised by the appellant in support of her claim to have a well‑founded fear of persecution was that she had been sexually assaulted by a friend of her family. She claimed that the friend was a former Minister in the government of PNG. The man was said to have offered to marry the appellant but she refused to do so. The appellant said that the person was a very powerful figure in PNG, even though he had lost office. She said that she was scared that if she went back to PNG and reported him, he would harm or even kill her. 4 The appellant said that she had not seen the person, who I will call Mr W, for approximately 12 months before her departure from PNG because during that period she was in hiding in Port Moresbywith a family for whom she was employed in a domestic situation. 5 The appellant gave one further principal reason why she claimed to fear harm in PNG. This was that her brother had been murdered and she was scared that her father had disappeared. She said there were rumours going around that she would "wind up like her brother". 6 The Tribunal had some doubts as to the accuracy of the appellant's account of her experiences in PNG, but it was prepared to give the appellant the benefit of the doubt by accepting that she had been subject to sexual assault and threats at the hands of Mr W. The Tribunal was not satisfied that Mr W was a former Minister, although it accepted that he may well have represented himself to her as a Minister in the PNG government. 7 The Tribunal accepted that if the appellant were to return to PNG, it might well be impossible for her to regain her position with the same family for whom she had been employed during the 12 months before her departure. The Tribunal went on to say: However I am not satisfied that, having been able to avoid harm for twelve months through the relatively simple expedient of working for this family in the same city where [Mr W] lives, it would not be possible for her to continue to find safety through some similar arrangement if she were to return to Papua New Guinea. I am not satisfied in these circumstances that there is a real chance that the Applicant would suffer serious harm at the hands of [Mr W] if she were to return to live in Papua New Guinea.

8 The Tribunal came to the view that there was nothing in the evidence to indicate that the harm she had suffered in the past, and which she claimed to fear in the future had any Convention nexus. The Tribunal said that although it was not satisfied that Mr W was, or ever had been a Minister; even if he had been, the circumstances would not on the evidence given by the appellant indicate that Mr W's actions had the relevant link to the Convention. The Tribunal referred to the grounds of political membership and membership of a particular social group. The Tribunal also found that the evidence did not establish any Convention nexus with the circumstances that led to the death of her brother. 9 In summary, the Tribunal's finding against the appellant was that, "while it is impossible not to have sympathy" with the appellant for her experiences, the Tribunal was not satisfied that there was a real chance that she would suffer serious harm if she returned to PNG. 10 The application for review in the Federal Magistrates Court raised three grounds which are set out in full in [5] of the reasons for judgment of the learned Federal Magistrate. 11 Ground one was that the appellant was not given sufficient opportunity to explain the threats to her life; however the Federal Magistrate rejected this because she said that a fair reading of the Tribunal decision made it clear that the appellant was given a reasonable opportunity to explain her claims. The learned Federal Magistrate had regard to the record of the hearing and came to the view that ground one was not made out. 12 The substance of what the Federal Magistrate said about the other two grounds was that there was nothing to support them as grounds for judicial review. 13 The appellant's notice of appeal was filed on 29 October 2007. It raises ten grounds of appeal. Only one of the grounds was in a general sense argued before the Federal Magistrate, that beingground number two, which refers to a denial of procedural fairness. However, the procedural fairness ground, stated in [2] of the Notice of Appeal, does not accord with the limited way in which that issue was put before the Federal Magistrate. 14 In accordance with the principles stated by a Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, the approach which I propose to take is that leave to raise new grounds of appeal should only be granted where it can be shown that they have sufficient merit. An explanation for failure to run the matters below is ordinarily required, but in this case the appellant is not legally represented and it seems to me that the overriding consideration is whether or not there is sufficient merit to warrant the grant of leave to raise the grounds of appeal that were not argued on the application before the Federal Magistrate. 15 It seems to me that the only ground which might be thought to have some possible merit is the ground number four, which contends that the Federal Magistrate was in error in failing to apply the principles laid down by a Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. 16 However, I have come to the view that the principle stated in Randhawahas no application because it did not arise on the application in the Tribunal. It seems to me that the substance of the Tribunal's reasons were that, while it accepted most of the evidence put by the appellant, it was not satisfied that her claimed fear of persecution had a connection to any of the reasons stated in the Convention. 17 I accept the submission put by counsel for the Minister that, in the passage which I have quoted above, the Tribunal was considering the question of the appellant's ability to avoid harm for 12 months while she was living with another family. 18 In relation to the issue of whether she had any real chance of suffering serious harm, I do not consider that the Tribunal addressed the question of relocation. Nevertheless, I am satisfied that that question did not arise because once the Tribunal had come to the view that the Convention nexus was lacking, it was not necessary for it to go on to consider the possibility of relocation. 19 In my view, the lack of Convention nexus was a separate and independent ground upon which the decision of the Tribunal turned. I do not consider that the present matter falls within the decision of the High Court in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634. This is not a case in which the Tribunal side-stepped considerations of what might reasonably be expected of the appellant with respect to any relocation in PNG. There was no error of law going to an essential task of the Tribunal: cf. SZATV at [32]. 20 I do not consider that there was any question of a failure to accord procedural fairness. The material before me on the appeal satisfies me that the appellant was invited to a hearing in accordance with s 425 of the Migration Act 1958 (Cth), the appellant attended the hearing and the Tribunal decision was based on evidence provided by the appellant. Accordingly, there was no obligation under s 424A of the Act and that section was not enlivened. 21 There was nothing in the Tribunal's findings, or reasons to indicate that the Tribunal failed to consider the matters to which the appellantrefers in her notice of appeal. The Tribunal approached the matter by giving her the benefit of the doubt, and accepting her factual claims. 22 Ultimately, the Tribunal did not accept that, although the appellant had been assaulted by Mr W in the circumstances set out above, there was any Convention nexus, nor would it accept that there was any Convention nexus with the circumstances relating to her brother's death. 23 A fair reading of the Tribunal's decision reveals that the Tribunal looked at the whole of the appellant's claims. 24 There is reference in the proposed grounds of appeal to the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601. There was nothing to suggest that the special considerations which arose in that case were demonstrated to apply to the material before the Tribunal. 25 It follows that withthe exception of the procedural fairness ground referred to in [2] of the Notice of Appeal, I do not consider there is sufficient merit to give leave to raise any of the other grounds stated in the Notice of Appeal filed on 29 October 2007. 26 The appellant appeared before me in person this morning. It was plain that she had difficulty in addressing me on the matters which need to be considered in the appeal. 27 I note and accept what the Tribunal said, ie. that it is impossible not to have sympathy with the appellant, because of the experience she has apparently suffered in PNG. 28 Nevertheless, having considered the matter carefully for myself, and bearing in mind the helpful submissions put by the Minister, I can see no error on the decision of the Federal Magistrate, nor can I see that the decision of the Tribunal was attended by jurisdictional error. 29 It follows that I propose to dismiss the appeal, withcosts. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

SZJOP v Minister for Immigration & Citizenship

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