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[2008] FCA 167
Federal Court of Australia
2008-02-27
McKerracher J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate (Nicholls FM) made on 16 October 2007 (SZJPO & Ors v Minister for Immigration & Anor [2007] FMCA 1801) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 5 October 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (as he was then known) to refuse to grant protection visas to the appellants.
BACKGROUND 2 The appellants are citizens of India. They arrived in Australia on 10 March 2006. On 21 April 2006 the appellants lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (as it was then known). A delegate of the first respondent refused the application for protection visas on 25 May 2006. On 20 June 2006 the appellants applied to the Tribunal for a review of that decision. 3 Only the first appellant, the appellant husband, made claims under the Convention Relating to the Status of Refugees 1951 and amended under the Protocol Relating to the Status of Refugees 1967 (the Convention). The other appellants are his wife and two daughters; they do not assert any independent claims and are applying as members of the appellant's family unit. 4 The appellant claimed he was a supporter of the Vishwa Hindu Parishad (VHP) which was the parental institute of the Bharatiya Janata Party (BJP). He claimed that he went into a business partnership with a supporter of the Congress Party but fell out with his partner because of the partner's illegal activities. The appellant claimed that consequently, his former partner and accomplices tried to 'destroy' the appellant economically, financially and physically. The appellant claimed that he had a very large sum of his money withheld and this caused him to become mentally unstable. He stated that he filed a suit in the Ahmedabad Civil Court in 2001 for the recovery of his money and as a result was attacked. The appellant claimed to have reported the matter to the police but felt the police and politicians were against him. 5 Additionally, the appellant claimed that during this period there was severe friction between the Congress Party and the BJP and the appellant claimed he was followed and received threatening phone calls. The appellant claimed his daughter was also involved in an attempted hit and run during this period. 6 The appellant claims to fear going back to India because of danger from police, politicians and antisocial elements.
TRIBUNAL'S DECISION 7 The Tribunal considered the evidence provided by the appellant in relation to the threats but found that: On the basis of the evidence before it, including the applicant's own conduct, the Tribunal is satisfied that the applicant did not seriously feel threatened and those making the threats did not seriously intend to act upon them. The Tribunal, therefore, finds that the threats in this case did not fall within s.91R(1)(b) [of the Migration Act 1958] and do not give rise to any real chance of persecution in the reasonably foreseeable future. 8 The Tribunal accepted the appellant was a member of the BJP and that he had provided financial support and resources to the party. The Tribunal further accepted the appellant's former business partner and his associates were affiliated with the Congress Party. However the Tribunal considered the evidence provided but was not satisfied the threats against him and the harm he feared were for the reason of his political opinion or membership of any possible particular social group. 9 The Tribunal found the appellant's evidence showed that his enemies were essentially motivated by a need to guard their financial interests and protecting themselves against being adversely exposed and was not because of the appellant's membership of the BJP or of political opinions he held. 10 While considering that in the circumstances it was not necessary to canvass the question of relocation, the Tribunal decided to address the issue for the sake of completeness. It found that there had been no persuasive reason provided as to why the appellant would not be able to relocate internally. The Tribunal was satisfied that if the appellant wanted to avoid possible future conflict with his opponents in Gujarat it was reasonable for him to relocate. 11 Overall, based on the evidence before it, the Tribunal was satisfied that the appellant's fear of persecution for the reason of his political opinion or any other Convention reason was not well-founded.
federal magistrate's decision 12 Before the Federal Magistrate the appellant asserted various grounds, including a challenge to the Tribunal's evaluation of the appellant's level of harm resulting from an attack; failure to assess the cumulative effect of the fears suffered by the appellant's family; and an assertion of bias. 13 The Federal Magistrate, in considering the Tribunal's decision in light of the claims made by the appellant, found the Tribunal's decision relied on three separate and independent bases which were open to it on the evidence before it (at [19]): The Tribunal's decision to affirm the delegate's decision, the subject of the review before it, relied on three separate and independent bases to support its ultimate conclusion. First, the Tribunal found that the harm that the applicant claimed to have suffered did not amount to "serious harm" as required by s.91R(1)(b) of the Act. Section 91R provides that Article 1A(2) of the Refugees Convention does not apply in relation to persecution unless the persecution involves "serious harm". Second, and in any event, the Tribunal found that the threats claimed by the applicant to have been made against him were not for a Refugees Convention reason. Third, the Tribunal also found that the applicant and his family could safely relocate to another part of India. 14 His Honour found that a challenge to the Tribunal's findings in this regard would be to ask the Court to engage in an impermissible merits review. The Federal Magistrate found no basis to support the allegation of bias and that the relocation findings made by the Tribunal were open to it. His Honour was unable to discern any jurisdictional error in the decision and dismissed the application.
GROUNDS OF APPEAL 15 On 23 October 2007 the appellant filed a notice of appeal in this Court which raised three grounds as follows: 1. The Tribunal erred in law amounting to jurisdictional error in determining that relocation is a reasonable and feasible option for the applicant. 2. The Tribunal did not decide the real question in the case, as it had no rational basis upon which to answer the question of the effectiveness of the protection and in so doing failed to properly assess whether there was a real chance of persecution in the future. 3. The Tribunal's decision was in breach of rule (sic) of natural justice because it did not provide the applicant an opportunity to respond to adverse information and country information prior to decide (sic) the applicant's case. 16 Although these grounds of appeal are directed against the Tribunal rather than the Federal Magistrates Court, for the purpose of this appeal, the grounds will be considered as alleging a failure on the part of the court below to identify those failures of the Tribunal. 17 At the hearing of the appeal before me the appellant appeared and spoke in support of written submissions which had been filed shortly before the appeal commenced. Specifically those submissions advanced the argument that the Tribunal's decision was affected by a lack of procedural fairness by denying natural justice in breach of s 424A of the Migration Act 1958 (Cth) (the Act). 18 The appellant enclosed with his written submissions the transcript of the hearing before the Tribunal. The submissions made it clear that the orders sought were that the application be allowed, that there be certiorari, mandamus and costs. 19 I will now deal specifically with the three grounds formally raised in the notice of appeal and treat those as grounds of appeal from the decision of the Court below rather than from the Tribunal.
Ground 1 - Relocation 20 The first ground asserts that there was an error of law amounting to jurisdictional error in determining the relocation wMCKERRACHER J
NEW SOUTH WALES DISTRICT REGISTRY NSD 2094 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 2094 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate (Nicholls FM) made on 16 October 2007 (SZJPO & Ors v Minister for Immigration & Anor [2007] FMCA 1801) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 5 October 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (as he was then known) to refuse to grant protection visas to the appellants.
BACKGROUND 2 The appellants are citizens of India. They arrived in Australia on 10 March 2006. On 21 April 2006 the appellants lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (as it was then known). A delegate of the first respondent refused the application for protection visas on 25 May 2006. On 20 June 2006 the appellants applied to the Tribunal for a review of that decision. 3 Only the first appellant, the appellant husband, made claims under the Convention Relating to the Status of Refugees 1951 and amended under the Protocol Relating to the Status of Refugees 1967 (the Convention). The other appellants are his wife and two daughters; they do not assert any independent claims and are applying as members of the appellant's family unit. 4 The appellant claimed he was a supporter of the Vishwa Hindu Parishad (VHP) which was the parental institute of the Bharatiya Janata Party (BJP). He claimed that he went into a business partnership with a supporter of the Congress Party but fell out with his partner because of the partner's illegal activities. The appellant claimed that consequently, his former partner and accomplices tried to 'destroy' the appellant economically, financially and physically. The appellant claimed that he had a very large sum of his money withheld and this caused him to become mentally unstable. He stated that he filed a suit in the Ahmedabad Civil Court in 2001 for the recovery of his money and as a result was attacked. The appellant claimed to have reported the matter to the police but felt the police and politicians were against him. 5 Additionally, the appellant claimed that during this period there was severe friction between the Congress Party and the BJP and the appellant claimed he was followed and received threatening phone calls. The appellant claimed his daughter was also involved in an attempted hit and run during this period. 6 The appellant claims to fear going back to India because of danger from police, politicians and antisocial elements.
TRIBUNAL'S DECISION 7 The Tribunal considered the evidence provided by the appellant in relation to the threats but found that: On the basis of the evidence before it, including the applicant's own conduct, the Tribunal is satisfied that the applicant did not seriously feel threatened and those making the threats did not seriously intend to act upon them. The Tribunal, therefore, finds that the threats in this case did not fall within s.91R(1)(b) [of the Migration Act 1958] and do not give rise to any real chance of persecution in the reasonably foreseeable future. 8 The Tribunal accepted the appellant was a member of the BJP and that he had provided financial support and resources to the party. The Tribunal further accepted the appellant's former business partner and his associates were affiliated with the Congress Party. However the Tribunal considered the evidence provided but was not satisfied the threats against him and the harm he feared were for the reason of his political opinion or membership of any possible particular social group. 9 The Tribunal found the appellant's evidence showed that his enemies were essentially motivated by a need to guard their financial interests and protecting themselves against being adversely exposed and was not because of the appellant's membership of the BJP or of political opinions he held. 10 While considering that in the circumstances it was not necessary to canvass the question of relocation, the Tribunal decided to address the issue for the sake of completeness. It found that there had been no persuasive reason provided as to why the appellant would not be able to relocate internally. The Tribunal was satisfied that if the appellant wanted to avoid possible future conflict with his opponents in Gujarat it was reasonable for him to relocate. 11 Overall, based on the evidence before it, the Tribunal was satisfied that the appellant's fear of persecution for the reason of his political opinion or any other Convention reason was not well-founded.
federal magistrate's decision 12 Before the Federal Magistrate the appellant asserted various grounds, including a challenge to the Tribunal's evaluation of the appellant's level of harm resulting from an attack; failure to assess the cumulative effect of the fears suffered by the appellant's family; and an assertion of bias. 13 The Federal Magistrate, in considering the Tribunal's decision in light of the claims made by the appellant, found the Tribunal's decision relied on three separate and independent bases which were open to it on the evidence before it (at [19]): The Tribunal's decision to affirm the delegate's decision, the subject of the review before it, relied on three separate and independent bases to support its ultimate conclusion. First, the Tribunal found that the harm that the applicant claimed to have suffered did not amount to "serious harm" as required by s.91R(1)(b) of the Act. Section 91R provides that Article 1A(2) of the Refugees Convention does not apply in relation to persecution unless the persecution involves "serious harm". Second, and in any event, the Tribunal found that the threats claimed by the applicant to have been made against him were not for a Refugees Convention reason. Third, the Tribunal also found that the applicant and his family could safely relocate to another part of India. 14 His Honour found that a challenge to the Tribunal's findings in this regard would be to ask the Court to engage in an impermissible merits review. The Federal Magistrate found no basis to support the allegation of bias and that the relocation findings made by the Tribunal were open to it. His Honour was unable to discern any jurisdictional error in the decision and dismissed the application.
GROUNDS OF APPEAL 15 On 23 October 2007 the appellant filed a notice of appeal in this Court which raised three grounds as follows: 1. The Tribunal erred in law amounting to jurisdictional error in determining that relocation is a reasonable and feasible option for the applicant. 2. The Tribunal did not decide the real question in the case, as it had no rational basis upon which to answer the question of the effectiveness of the protection and in so doing failed to properly assess whether there was a real chance of persecution in the future. 3. The Tribunal's decision was in breach of rule (sic) of natural justice because it did not provide the applicant an opportunity to respond to adverse information and country information prior to decide (sic) the applicant's case. 16 Although these grounds of appeal are directed against the Tribunal rather than the Federal Magistrates Court, for the purpose of this appeal, the grounds will be considered as alleging a failure on the part of the court below to identify those failures of the Tribunal. 17 At the hearing of the appeal before me the appellant appeared and spoke in support of written submissions which had been filed shortly before the appeal commenced. Specifically those submissions advanced the argument that the Tribunal's decision was affected by a lack of procedural fairness by denying natural justice in breach of s 424A of the Migration Act 1958 (Cth) (the Act). 18 The appellant enclosed with his written submissions the transcript of the hearing before the Tribunal. The submissions made it clear that the orders sought were that the application be allowed, that there be certiorari, mandamus and costs. 19 I will now deal specifically with the three grounds formally raised in the notice of appeal and treat those as grounds of appeal from the decision of the Court below rather than from the Tribunal.
Ground 1 - Relocation 20 The first ground asserts that there was an error of law amounting to jurisdictional error in determining the relocation was a reasonable and feasible option for the appellant. There is no jurisdictional error articulated in this ground and no elucidation of the nature of the error was advanced during the course of the hearing. The ground of appeal was considered before the Federal Magistrates Court by his Honour and, in my view, the assessment of it by his Honour was correct. This ground therefore fails.
Ground 2 - A real chance of persecution 21 Ground 2 deals with the failure on the part of the Tribunal to decide the real question in the case as it had 'no rational basis on which to answer the question of the effectiveness of protection' and in doing so, failed to properly assess whether there was a real chance of persecution in the future. Again, this is a bare assertion which was not advanced in any respect in the hearing before me. On examining the decision of the Tribunal, there is no obvious misunderstanding or failure to deal with any of the claims by the appellant nor is there any apparent application of the wrong test in consideration of the claims. Contrary to the submission in the ground of appeal that there is a lack of any rational basis, the analysis for the purpose of s 91R of the Act does not demonstrate any misapplication. In my view this ground cannot succeed.
Ground 3 - Breach of natural justice 22 Ground 3 claims as do the submissions, a breach of natural justice due to the failure to provide the appellant with an opportunity to respond to adverse information and country information. This ground was not raised before the Federal Magistrate. Leave would be required to advance it on the appeal. It would be necessary that I be satisfied that permitting amendment to advance this ground would be expedient in the interests of justice, (SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129). 23 The particular adverse information has not been identified. It is not apparent from the reasons of the Tribunal that it relied upon any 'information' adverse to the appellant which triggered the requirements under s 424A of the Act. To the extent that the Tribunal relied upon 'country information', it is clear that such information is within the exception provided for by s 424A(3)(a) of the Act and was thus excluded from the obligation under s 424A(1). This ground must also fail. 24 At the hearing, the appellant also made submissions, albeit in reply, to the effect that he had been unwell and stressed in the course of giving evidence at the Tribunal hearing. There was no affidavit or other evidence on this issue. He made the point that he had been suffering from various medical ailments but, in particular, made reference to the stress which he was under in the course of answering questions in the Tribunal. He referred to difficulties he was experiencing with his family and children. Throughout the Tribunal hearing the appellant had been ably assisted by an advisor. It is clear that prior to a hearing date which had been scheduled at an earlier time, his advisor sought and obtained an adjournment on the grounds of the appellant's ill health. The appellant expressly said that he did not raise his stress issue with the Tribunal. There is no reason to think that the Tribunal would have been aware that the appellant was suffering from such stress that he was unable to have a fair hearing. His advisor who, on the face of matters, appeared to be capable and competent, made no application at any time for an adjournment or other consideration to be given to the appellant during the course of the hearing in relation to either a medical condition or some particular stress over and above the stress that any litigant or witness experiences in the course of a formal process of giving evidence. The appellant stressed that he was not blaming other people for anything that had gone wrong in his case as he put it but asked to have another chance because of the mistakes he had made when he was under stress in giving evidence before the Tribunal. 25 These submissions would necessarily give rise to a completely fresh ground of appeal. I am not persuaded that amendment should be permitted. I am mindful that the appellant was, both during the course of preparation for and also in presentation of his evidence in the Tribunal ably assisted by an advisor. If the appellant had been under such unusual stress that he was unable to understand the questions that were put to him it is more probable than not that he would have conveyed those difficulties to his advisor who in turn would have conveyed them to the Tribunal. 26 Although no fresh ground of appeal was articulated at the hearing, I am not convinced that there was sufficient substance in what has been raised at the last minute by the appellant to constitute an amendment to the ground of appeal. It does not appear to me that it would have sufficient prospects of success, were it permitted. 27 The appellant has not identified any jurisdictional error in the reasoning of the Federal Magistrate nor, in my view, am I able to discern any error of a jurisdictional nature on the part of the Tribunal.
conclusion 28 The appeal must be dismissed with costs to be agreed or taxed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.
The First Appellant appeared in person and represented all the Appellants
Counsel for the First Respondent: J Pownall
Solicitor for the First Respondent: Australian Government Solicitor
Date of Hearing: 26 February 2008
Date of Judgment: 27 February 2008
SZJPO
Minister for Immigration and Citizenship
[2007] FMCA 1801