SZAFC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1405

FEDERAL COURT OF AUSTRALIA

SZAFC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1405 SZAFC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N1474 OF 2003 EMMETT J 10 NOVEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1474 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZAFC

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 10 NOVEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the appeal be dismissed; 2. the appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1474 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZAFC

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 10 NOVEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant claims to be a citizen of India. She most recently arrived in Australia on 30 July 2001. On 13 June 2002 she lodged an application for protection (class XA) visa under the Migration Act 1958 (Cth) ('the Act'). On 28 June 2002, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused to grant a protection visa and, on 15 July 2002, the appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of that decision. On 9 January 2003, the Tribunal affirmed the decision not to grant a protection visa. 2 On 24 February 2003, the appellant applied to the Federal Magistrates Court for orders in respect of that decision. On 5 September 2003, Driver FM ('the Magistrate') ordered that the application be dismissed and ordered the appellant to pay the Minister's costs and disbursements of and incidental to the application in a fixed sum: see SZAFC v Minister for Immigration [2003] FMCA 380. 3 On 26 September 2003, the appellant lodged a notice of appeal to the Federal Court of Australia. On 7 November 2003, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Acting Chief Justice directed that the appeal be heard and determined by a single judge. 4 When the appeal was called on for hearing today, the appellant appeared without legal representation, although she was assisted, to the extent necessary, in interpretation from Telugu into English and from English into Telugu by a Court officer. It was not possible to arrange any other interpretation in the Telugu language. I am satisfied that the appellant has understood the nature of the proceeding and has understood what has been said in Court. 5 In her application for a protection visa, the applicant claimed that her husband was a union leader and that, in 1991, he was involved in a union dispute, which led to threats being made against him. After that, her husband was so frightened that he took compulsory retirement and has been missing since then. She said that she presumed her husband had been killed by opposition union leaders or by the management of the company that employed him. The Tribunal, in its reasons, recorded that, at the hearing, the appellant was asked about her husband. She indicated that she had a lot of problems with her husband but could not get a divorce for family reasons. She told the Tribunal that she does not know where her husband currently lives and does not want to live with him again. 6 The appellant told the Tribunal that she came to Australia because her company wanted to start a business here. She indicated that, after she had done some initial work, she went back to India and that her company then offered her a partnership in Australia. The appellant said that she had some difficulties getting the business registered in Australia as she did not have the proper documents. The appellant told the Tribunal that she feared she could not go back to India because people believed that she earned a lot of money in Australia and would blackmail her. She said that, by that, she meant people from the union to which her husband belongs and that those people had asked her for money to pay her husband's debts. The Tribunal recorded in its findings that the appellant still claimed that if she returns to India she will be asked for money and will be blackmailed. She claims that this will occur because people will think that she has made a lot of money in Australia. 7 The Tribunal accepted that the appellant is a national of India, although her evidence during the hearing was different in some respects from the claims made in her application for a protection visa. Specifically, the Tribunal referred to the appellant's evidence during the hearing, which did not suggest that her husband had disappeared or had been killed as a result of a management/union dispute in his workplace. The appellant did not have any explanation for the difference between her oral claims to the Tribunal and her written claims in support of her application. 8 However, the Tribunal was impressed by the appellant as someone who was trying to be frank, even though her evidence appeared somewhat confused from time to time. The Tribunal accepted that the appellant's evidence during the hearing was essentially truthful and was prepared to prefer her oral evidence to the written evidence in support of her application for a protection visa. The Tribunal assessed the appellant's claims against the oral claims she made at the hearing before the Tribunal. 9 The Tribunal accepted that the appellant had an unhappy marriage and accepted that she had been pressured to pay her husband's debts. The Tribunal also accepted that the appellant fears that she will continue to be pressured to pay her husband's debts if she returns to India. It also accepted that other people would think that the appellant has made a lot of money while in Australia. However, the Tribunal did not consider that the appellant's evidence indicated that any harm that she feared was for reasons of her race, her religion, her nationality, her membership of a particular social group or her political opinion. Her evidence was simply that she would be pressured to pay her husband's debts because she would be perceived to have made money in Australia. In those circumstances, the Tribunal was not satisfied that the appellant feared harm for a Convention reason if she returned to India. 10 The appellant's application to the Federal Magistrates Court did not disclose any grounds upon which there could be any interference by that Court with the Tribunal's decision. She simply asserted that the decision was incorrect and that the decision maker had not considered all the material facts on the file. No particulars were given. Rather, the application said that a detailed submission would be filed after seeking legal advice. The Magistrate recorded, however, that no such submission was filed. 11 The Magistrate recorded in his reasons that the appellant told him that she had difficulty in dealing with or renewing her business visa and that she was advised by her migration agent to apply for a protection visa on the basis that that would give her time to sort out the problem with her business visa. While those statements were regarded by the Magistrate as casting serious doubt on the genuineness of her application for a protection visa, his Honour considered that that information alone was not a reason for refraining from reviewing the Tribunal's decision. When invited to tell the Magistrate what was wrong with the decision of the Tribunal, the appellant was unable to do so. The Magistrate then raised two possible bases with counsel for the Minister upon which it may have been possible to contend for a ground of review. The first was whether the Tribunal erred in failing to consider all elements or integers of the appellant's claims of persecution. The second was whether the Tribunal erred in its conclusion that the appellant did not fear harm by reason of membership of a particular social group. 12 The Magistrate dealt with the first ground on the basis that the appellant claimed fear of persecution for imputed political beliefs through her family connection with her husband as a trade union leader. His Honour observed that the Tribunal appeared to have proceeded on the basis that the written claims concerning the appellant's husband had been abandoned and that the appellant was relying only upon her oral claims at the hearing. 13 His Honour considered that, while the Tribunal could have made the matter clearer by specifically asking the appellant if she was abandoning her written claims, the Tribunal reasonably proceeded to deal with the application on the basis of the oral claims alone. His Honour observed that the Tribunal accepted the appellant's fear as a genuine fear but found that there was no connection between that fear and a Convention reason. His Honour accepted that that finding was not erroneous. 14 In dealing with the second possible ground, his Honour observed that it did not appear that the appellant herself claimed membership of any particular social group. The social groups postulated by the Magistrate were, first, persons returning to India from Australia, and, secondly, persons returning from Australia or some other foreign country who were perceived as having made money and who had debts in India. His Honour concluded that it would be difficult to construct a particular social group along those lines. 15 In the circumstances, the Magistrate concluded that the appellant had failed to demonstrate that any legal error had been made by the Tribunal. His Honour considered that there was no legal error and no jurisdictional error apparent on the material before him. 16 The notice of appeal to this Court states as grounds that the Magistrate 'has failed in finding denial of natural justice and procedural fairness occurred in the decision' of the Tribunal. The appellant offered no submissions in support of that ground and simply asserted, as one might understand, that she did not wish to return to India. 17 In the circumstances, no error has been shown on the part of the Magistrate. It follows that the appeal should be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.