SZLLY v Minister for Immigration and Citizenship

Federal Court of Australia|2010-05-05|Before: Barker J

APPEAL 1 This is an appeal from a judgment of a Federal Magistrate delivered on 29 January 2010. The Federal Magistrate dismissed the appellants' application for review of a decision of the Refugee Review Tribunal (Tribunal) given 3 July 2009. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant the appellant a protection (Class XA) visa.

application for protection visa 2 The appellants are citizens of India who arrived in Australia on 22 March 2007. On 1 May 2007 the appellants lodged an application for a protection visa with the Department of Immigration and Citizenship. In that application, the first appellant claimed that he set up a business trading cotton. He claimed that he entered into a trading agreement with a Muslim man and that with his help the business expanded. However, changes by the Gujarat State Government in relation to excise duty of the transport of cotton meant that the price of cotton increased and he lost customers As a result the Muslim trader called him and scolded him and then refused to pay for cotton that the first appellant had delivered to him. The first appellant was unable to make payments to his suppliers and lost further business The first appellant claimed that he was warned that if he sought payment from those who owed him money they would kill him. The appellants subsequently moved to a nearby town; however, they were found there and were attacked and threatened. The appellant and his wife decided to leave India and come to Australia. 3 A delegate of the first respondent refused the application for a protection visa on 15 May 2007. On 7 June 2007, the appellants applied to the Tribunal for a review of that decision. On 31 August 2007, the Tribunal (differently-constituted) affirmed the delegate's decision. That decision was quashed by an order of the Federal Court of Australia on 4 March 2009, and the matter remitted to the Tribunal to be determined according to law.

review by tribunal 4 The Tribunal accepted most of the first appellant's claims relating to his debts and the threats he received from creditors However, the Tribunal did not accept that his situation had "religious dimensions". The Tribunal stated that whilst it may have been the case that he was a Hindu and his suppliers were Muslim, there was no evidence that the treatment he received was essentially and significantly motivated by religion, or that he would be denied State protection on the basis of his religious beliefs. 5 On the basis of the above, the Tribunal was satisfied that the appellants did not meet the criterion for a protection visa as set out in s 36(2)(a) of the Migration Act 1958 (Cth) (Act), and affirmed the decision under review.

DECISION OF THE FEDERAL MAGISTRATE 6 On 24 July 2009 the appellants filed an application for judicial review in the Federal Magistrates Court. In an amended application filed on 2 October 2009 the appellants raised three grounds of review. 7 The first ground of review contended that the Tribunal had failed to comply with s 424A of the Act. The Federal Magistrate dismissed this contention, noting that the provision had no relevant application to the information relied upon by the present Tribunal. 8 The second ground of review contended that the Tribunal had failed to comply with s 424 of the Act as the 'invitation' was not given in accordance with s 424(3)(a) and s 424B of the Act. In this respect, his Honour found that as there was no invitation sent by the Tribunal pursuant to s 424(2) of the Act, a failure to comply with s 424(3) and s 424B was not established. 9 The third ground of review alleged that the Tribunal failed to consider properly whether the appellants would suffer serious harm pursuant to s 91R(2)(a) of the Act if they were asked to relocate in India. In this respect, his Honour noted that the issue of relocation did not appear anywhere within the Tribunal's decision, nor could any inference be drawn that such an issue was discussed with the appellants at the Tribunal hearing. More importantly, the Tribunal did not make any finding as to whether or not the harm the first appellant claimed to fear was sufficiently serious to amount to persecution, or involved systematic or discriminatory conduct. It was unnecessary for the Tribunal to do so, as it was not satisfied on the evidence before it that the first appellant had experienced any harm for a Convention related reason. 10 Having found no jurisdictional error in the Tribunal's decision, the Federal Magistrate dismissed the application.

appeal to this court 11 On 15 February 2010, the appellants filed a Notice of Appeal which states, in [2] and [3], two grounds: 2. The honourable FM failed to consider the ground of my appeal such as the Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per s 91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate to India. The Tribunal's failure to satisfy this statutory obligation was a serious jurisdictional caused by the Tribunal. 3. The Tribunal had no jurisdiction to make the said decision because its 'reasonable satisfaction' was not arrived in accordance with the provisions of the Migration Act. [As stated in original]

consideration 12 First ground: The appellant seeks to identify error in the judgment of the Federal Magistrates Court by alleging that the Tribunal failed to consider properly whether the appellants would suffer serious harm pursuant to s 91R(2)(a) of the Act, 'if they asked to relocate within India' (sic). However, as the Federal Magistrate explained in his judgment, the Tribunal did not consider the issue of relocation within India because it was not satisfied that the appellants faced a real chance of persecution in India for a Convention reason. 13 The Tribunal's finding in this regard is one of fact which cannot easily be challenged and is not challenged on this appeal. 14 In oral submissions at the appeal, the appellant acknowledged that the harm he feared was not based on religious reasons. 15 This ground must fail. 16 Second ground: The second ground of appeal asserts that the Tribunal had no jurisdiction to make the decision because its 'reasonable satisfaction' was not arrived at in accordance with the provisions of the Act. This ground was not raised before the Federal Magistrate. In any event, the point has no merit. 17 The essence of the Tribunal's decision, as the Minister submits, was its inability to be satisfied on the evidence before it that the appellant satisfied the criterion set out in s 36(2) for the grant of a protection visa. In particular, the Tribunal was not satisfied that the appellant feared harm for a Convention reason, as explained in relation to the first ground. The Tribunal's finding that the appellant's claims were unrelated to the Convention was a finding of fact and correctly reflects the requirement that the feared harm must be found in the "singling out of one or more of the five attributes expressed in the Convention definition": Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; [2002] HCA 14, at 28; see also Minister for Immigration and Multicultural and Indigenous Affairs v VFAY [2003] FCAFC 191, at 49-56. 18 No jurisdictional error is apparent in the Tribunal's approach or findings because the facts that were put forward by the appellant did not cause the Tribunal to be satisfied as to the applicable criteria. As the Tribunal put it (and the appellant now appears to accept), there was no "religious dimension" to the fear expressed by the appellant. Satisfaction of the criteria depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to have protection obligations to an applicant under the Refugees Convention: see SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215, at [14]‑[16]. 19 The appellants have not sought in any meaningful sense to challenge on appeal the findings of the learned Federal Magistrate. No error has been identified by the appellants in the judgment and approach of the Federal Magistrate or any jurisdictional error in the decision and procedures of the Tribunal. 20 This ground must fail.

conclusion and orders 21 For these reasons, the appeal should be dismissed with costs.

Orders 1. The appeal be dismissed. 2. The first and second appellants pay the first respondent's costs, fixed in the sum of $2300. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Federal Court Rules 1979(Cth)

Migration Act 1958(Cth)s 36(2), s

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