SZLSA v Minister for Immigration and Citizenship

Federal Court of Australia|2009-01-27|Before: Perram J

REASONS FOR JUDGMENT 1 This is an appeal from a decision given by the Federal Magistrates Court on 2 June 2008. The appellant applied to the Federal Magistrates Court for an order in the nature of certiorari quashing a decision made by the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision made by the Minister's delegate to refuse the issue of a protection visa to the appellant. A protection visa is issued to persons who are entitled to refugee status under the Refugees Convention. 2 The function of the Tribunal in considering the application by the appellant is to stand in the shoes of the delegate and to reach its own conclusion on the application. The grounds upon which a decision of the Tribunal may be challenged are somewhat circumscribed by the effect of s 476 of the Migration Act 1958 (Cth) ("the Act"). Despite the terms of s 476, however, decisions of the Tribunal are reviewable when it can be shown that they are affected by jurisdictional error: Plaintiff S157 v Commonwealth (2003) 211 CLR 476. It is for that reason that the application made to the Federal Magistrates Court by the present appellant sought to demonstrate the existence of such errors in the decision of the Tribunal. 3 In this case, the learned federal magistrate, despite industry, was unable to identify any jurisdictional errors within either the reasons of the Tribunal or the processes by which the Tribunal had arrived at its decision. Before this Court the appellant renewed his complaints about the Tribunal's commission of jurisdictional errors. In order to understand those complaints, it is necessary to have some grasp of the underlying facts presented to the Tribunal. 4 The appellant claims to be a citizen of India. He arrived in Australia on 11 May 2007. He applied to the Department of Immigration and Citizenship for a protection visa on 14 May 2007. A delegate of the Minister on 19 June 2007 decided to refuse to grant that visa. That decision was affirmed by the Tribunal on 15 October 2007. The appellant told the Tribunal that he was born in Chirakkara in Kerala which is a state in India. He claimed to have received a total of 18 years of formal education in India and to have received tertiary qualifications. He also claimed to have worked as a welder from 1995 to 1998, as a welder-foreman from 1998 to 2001, as a subcontractor with one company from 2001 to March 2003 and as a subcontractor to another company from March to August 2003. 5 The substantive arguments advanced by the appellant to the Tribunal were summarised by the Tribunal as follows: ● Following his graduation in 1994 he worked in various locations in India on construction projects. With two partners he founded a firm, Vaishnavi Constructions, which was registered in Jammu and Kashmir. In August 2003 the firm won an important subcontract from another firm, M/S SOMA TRG Joint Venture, for the USBRL railways construction project in Jammu and Kashmir. The work involved construction of Tunnel No. 10 at Katra. The project was a major one, valued at INR100 million, and his firm had to borrow money from private sources in Jammu and Kashmir in order to begin. As Jammu and Kashmir has a Muslim majority the firm had to appoint a number of Muslims as employees and also had to make monthly extortion payments to Muslim terrorist groups. The state is notorious for its lawlessness and no business can continued without making such payments to Muslim terrorist groups.

● His firm carried out the work according to the agreement. The local terrorist groups made several demands to the partners of the firm and made completion of the tunnel work nearly impossible. He received regular telephone threats from Muslim terrorist groups. There were also problems with the geological features of the site. The situation became 'unbearable' and the work undertaken by the firm partly ceased. Things deteriorated further as the terrorist groups began to hunt for the partners. The jobless employees, who were mostly Muslims, together with their organization threatened the partners' lives. Additionally, the creditors began threatening the partners and made their lives very difficult. He 'reasonably' believes that the creditors will at any time attempt to eliminate the partners.

● An additional problem is that TRG has begun civil action against the firm in the Jammu and Kashmir High Court, demanding INR 20 million in compensation and the surrender of huge quantities of steel and cement. They claim the firm has misused raw materials and have threatened that the partners will be implicated in a criminal case. The real intention of TRG is to secure the presence of the partners in Jammu and Kashmir so that they can be forced to pay the money. If the Applicant goes to Jammu and Kashmir there is every chance that the 'muscle men' of TRG will harass him. The TRG group will definitely influence the police force and have him arrested and there is every possibility that he will be harassed by the police. Under India law every partner is equally liable to third parties for compensation. He is not in a position to attend court to prove his innocence because he is afraid of the wrath of the terrorist groups and other groups who have a strong presence in Jammu and Kashmir.

● Jammu and Kashmir has the worst record of lawlessness in India and there are numerous instances in which Hindus from other States employed on projects there have been murdered by shooting or beheading. Extremists carrying out these attacks have the full support of local Muslims and the police and military cannot contain them. He is facing a serious threat to his life and to return to India would be suicidal.

6 Whilst the Tribunal had doubts as to the veracity of the appellant's claims about the project in Kashmir it nevertheless decided, despite some misgivings, to accept them. Thus it accepted that the appellant and two other friends had formed a company called Vaishnavi Constructions in August 2003 and that the company was involved in the construction of a tunnel on the USBRL railway in Kashmir. The Tribunal also accepted that the company's subcontract was subsequently cancelled due to non-performance. 7 Notwithstanding what the Tribunal regarded as irregularities in relation to the authenticity of the court documents, the Tribunal also accepted that it appeared that the High Court of Jammu and Kashmir had issued a notice for appearance to the parties and that that document related to a civil matter brought by TRG against the appellant and his fellow partners of Vaishnavi Constructions. The Tribunal did not accept that it was necessary for the appellant to travel to Jammu or Kashmir to deal with the proceedings. The Tribunal thought that the appellant could just as easily have appeared through a lawyer. Accordingly the Tribunal was not satisfied that the appellant had been charged with a criminal offence in the High Court of Jammu or Kashmir relating to his involvement with the company nor that he was facing criminal charges there or anywhere else in India. Further, the Tribunal was not satisfied that he was suspected of having misused explosives or other construction materials or that he would be arrested by the police for these matters (or any others) if he was compelled to travel to Jammu and Kashmir to face alleged criminal proceedings. There were a number of other findings by the Tribunal which, for present purposes, are not material. 8 In this Court the appellant raised a number of grounds. The first was that the Tribunal had committed a jurisdictional error. However no particulars were provided for this ground and in those circumstances it is impossible to ascertain precisely what that error might have been. 9 The second and third grounds relied upon were that the Tribunal had failed to accord the appellant procedural fairness and/or natural justice. That allegation in the notice of appeal was unaccompanied by any indication, or distant hint, of what the breach might have been. Accordingly that ground has not been made out. 10 At the hearing the appellant provided further written submissions which identified other matters upon which the appellant relied. These were first, that the Tribunal had erred in not being satisfied that the appellant was a person to whom Australia had protection obligations under the Refugee Convention. That allegation does not disclose the existence of a jurisdictional error and accordingly must be rejected. 11 Secondly, it was alleged that the Tribunal had acted illogically when it concluded that it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason if he returned to India. The appellant complained that that illogicality amounted to a "clear jurisdictional error" because the Tribunal failed to weigh properly the effect of the appellant's claim. It is difficult precisely to discern the content of this submission. If the allegation is merely one of lack of logicality, jurisdictional error is not thereby established. If, on the other hand, the allegation is that a jurisdictional error was committed because of a failure by the Tribunal to weigh properly the effects or otherwise of the appellant's claim then clearly that is not a jurisdictional error either. That is so because the authority to weigh evidence and assess it is pre-eminently a function of the Tribunal. Jurisdictional error is not established by demonstrating that a different body might, or should, have weighed the evidence differently. 12 The third submission was that the Tribunal had failed to appreciate that the appellant satisfied the definition of "refugee" as defined in Article 1A(2) of the Refugees Convention. It seems to me that there is no substance to this allegation at all. The Tribunal explicitly turned its attention to the definition in the Convention and sought, as best it could, to apply it. 13 The appellant then argued that the Tribunal had failed to afford him procedural fairness under s 424 of the Act. The basis for this allegation was that the Tribunal had relied on independent evidence as to the prevalence of a claim about political persecution. It is apparent from the decision of the Tribunal that the information used by it fell into two categories: (a) information provided by the appellant under s 424A(3)(b); and (b) aspects of the Tribunal's reasoning process about the appellant which were not prejudicial to him. None of this amounts to information within the meaning of s 424A. The consequence is that there could be no breach of procedural fairness arising therefrom: cf. SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 616 [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. 14 The appellant also argued that he had given adequate evidence that he was physically assaulted but that the Tribunal had failed to consider this to be a genuine claim. An incorrect or erroneous determination by the Tribunal that a claim was not genuine does not, of itself, prove the existence of a jurisdictional error. This is unsurprising since jurisdictional review is concerned with the limits of the authority of the decision-maker rather than the correctness of his or her decision. The Tribunal clearly made a determination in respect of the claim. The appellant then suggested that the Tribunal failed to give him an opportunity to comment or respond to adverse information provided "by the applicant". I see no basis upon which such an argument may be mounted. 15 The appellant then contended as follows: The Tribunal did not use the Applicants country information however, the l information gathered by the Tribunal considered to weigh against the case in the final outcome, The Tribunal used all information for matter of reasoning and evaluation of Applicants case for the protection visa, The Tribunal was pre occupied and did not have a fresh look.

16 I do not understand this ground. It does not, on its face, appear to involve a jurisdictional error. Without clarification as to what it means, it is inappropriate to entertain it. 17 Finally, the appellant submitted that the Tribunal committed a serious misdirection by denying him an opportunity "to explain at this hearing and thereby was prejudiced against the applicants refugee claims". There is some obscurity in relation to this allegation. It may, on the one hand, be an allegation of a breach of the rules of procedural fairness; it may, on the other, be a claim of ostensible bias. So far as the latter is concerned, the mere rejection of the appellant's claims by the Tribunal could not amount to bias. Insofar as the former is concerned, no particularity is provided which might call for consideration. 18 During the hearing the appellant also handed up a number of newspaper articles by which he sought to show that the political situation in Kerala had now developed to a level where it was accepted that the persecution in Kashmir and Jammu could follow the appellant all the way back to Kerala. It is not necessary to decide the correctness, or otherwise, of that proposition. Attention must be confined to the identification of jurisdictional error. The documents which the appellant sought to tender do not advance such a case. 19 In those circumstances none of the appellant's grounds are made out and the appeal should be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate: Dated: 27 January 2009 Counsel for the Appellant: The appellant appeared in person.

Counsel for the First Respondent: Mr JP Knackstredt

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