Minister for Immigration and Multicultural and Indigenous Affairs v SZBSO [2005] FCA 187

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Multicultural and Indigenous Affairs v SZBSO [2005] FCA 187 MIGRATION – whether Tribunal decision affected by jurisdictional error or a permissible factual finding Migration Act 1958 (Cth) Federal Proceedings (Costs) Act 1981, (Cth) s 6

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v SZBSO

NSD 1855 OF 2004

GYLES J

8 MARCH 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1855 OF 2004

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

APPELLANT

AND: SZBSO

RESPONDENT

JUDGE: GYLES J

DATE OF ORDER: 8 MARCH 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal is upheld.

2. The orders made by the Federal Magistrates Court are set aside.

3. The application to the Federal Magistrates Court be dismissed.

4. The respondent pay the appellant's costs of the application to the Federal Magistrates Court assessed at $3000.

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 NSD 1855 OF 2004

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

APPELLANT

AND: SZBSO

RESPONDENT

JUDGE: GYLES J

DATE: 8 MARCH 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal by the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) against the decision of a magistrate of the Federal Magistrates Court of Australia dated 23 November 2004 whereby a decision of the Refugee Review Tribunal (the Tribunal), which confirmed the refusal of a protection visa to the respondent, was quashed and remitted to the Tribunal for redetermination. 2 On 28 January 2005 the Registry of the Court received a letter from the respondent indicating that he was 'withdrawing the above-mentioned case and leaving Australia on 1st February 2005'. He indicated that he was aware of the appeal and of the listing for directions in February. He said that he had vacated his unit and did not have any existing postal address in Australia. 3 The matter came on for directions on 8 February 2005. The respondent was not present. The matter was set down for hearing at 2.15 pm on 15 February 2005 provisional upon a decision by the Chief Justice as to whether the matter should be heard by a single judge. A direction to that effect was made. 4 The respondent did not attend the hearing. There was a question as to whether the appeal should proceed. It was submitted on behalf of the Minister that it should because, as things stood, the Tribunal was bound to reconsider the matter. The appeal was thus not futile or academic. With some hesitation I accepted that submission. 5 The respondent is a citizen of India who arrived in Australia on 15 May 2002 and lodged an application for a protection visa on 11 June 2002. A delegate of the Minister refused the application. An application was made by the respondent to the Tribunal for review of that decision which failed. The essential claim of the respondent was that he feared persecution if he returned to India because he is a Christian and, in particular, is a Christian married to a Hindu woman. 6 The findings and reasons of the Tribunal are set out at pages 15–19 of the Tribunal's decision and I need not set them out in full. They can be taken to be incorporated. The introductory paragraph to the findings was as follows: 'I accept that the applicant is an Indian national. In my view, the applicant gave evidence in a frank and straightforward manner. He did not demonstrate any propensity to exaggerate or embellish his claims. I accept that the applicant's evidence was credible and reliable. That said, while I accept that the applicant has had a number of problems because of his marriage to a Hindu woman, I am not satisfied that the applicant's mixed religious marriage gives rise to a well-founded fear of persecution for a Convention reason. Nor am I satisfied that the applicant has a well-founded fear of persecution for reasons of his religion. My reasons for these findings follow.' The last paragraph was as follows: 'As noted above, the applicant was a very credible witness. I accept that he has undergone a range of difficult experiences in the past because he is a Christian married to a Hindu. I empathise with the applicant's situation. It may well be that he will have similar experiences in the future. However, I am unable to be satisfied that the applicant's past experiences, his religion or his marriage to a Hindu give rise to a well-founded fear of persecution for a Convention reason.' The conclusion was as follows: 'Having considered the evidence as a whole, I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. He therefore does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.' 7 Earlier the Tribunal had directed itself as to the law to be applied including the fear of persecution and the reason for that fear. Reference was made to s 91R and s 91S of the Migration Act 1958 (Cth). 8 The learned Federal Magistrate, after referring to authority, reviewed certain of the factual findings of the Tribunal and proceeded as follows: 'In my view the Tribunal accepted the evidence that the applicant led in all significant aspects. The Tribunal accepted that the applicant himself was "a very credible witness". The Tribunal accepted that the applicant had suffered significant acts of persecution in the past including being beaten up on two occasions, one at the instigation of his brothers in law, one by the workers of the wealthy Hindu. The Tribunal accepted that there were grounds for the applicant to have similar difficult experiences in the future, not necessarily being beaten up but difficulties with employment, difficulties with accommodation, difficulties with threats and harassment. It is quite clear in my view that the Tribunal's findings of what the applicant could expect in the future, or will expect in the future, does amount to a systematic course of discriminatory behaviour, selective harassment. There does not have to be a 100 per cent or even a 50 per cent certainty that those things will happen. I am of a view however that the findings made by the Tribunal do show that the applicant has a well founded fear of persecution, that well founded fear of persecution is on the basis of his religion because he is a Christian married to a Hindu. I am satisfied that this well founded fear of persecution is for a Convention reason and that the findings made by the Tribunal lead to that conclusion. For the Tribunal to make those factual findings which she did and accept the evidence of the applicant which she did, on all of those relevant points, but then not be satisfied that they amounted to a well founded fear of persecution for a Convention reason, is a jurisdictional error, it is a misunderstanding of the requirements and as was set out by the Full Court of the Federal Court in Scargill, was a constructive failure by the Refugee Review Tribunal to exercise the jurisdiction invested in it.' 9 It is submitted for the Minister that whether conduct amounts to 'persecution' and whether the applicant for a visa has a well founded fear of persecution on return are questions of fact and degree for the Tribunal. It is submitted that the Tribunal had found that the harm to the respondent that the Tribunal found to have occurred was not serious enough to amount to persecution and, having considered the past as a guide to what might occur in the future, the Tribunal was not satisfied that a case of a well founded fear of persecution on return was made out. It is submitted that such findings were the province of the Tribunal. Reference was made to Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at 268 and Arumugam v Minister for Immigration and Multicultural Affairs [1999] FCA 251 at [37]. It is submitted that the Tribunal simply took a different view to that of the respondent on the facts as to whether or not what had transpired amounted to persecution in the relevant sense and whether the respondent had a well founded fear of persecution if he returned to India and that no jurisdictional error was involved. 10 In my respectful opinion that submission is correct. It cannot be concluded that the Tribunal actually or constructively failed to consider the questions for decision by it pursuant to the statute. The learned Federal Magistrate did not criticise the statement of law by which the Tribunal directed itself and did not identify any language of the Tribunal which pointed to any misunderstanding of its statutory task. I am satisfied that this is not one of those rare cases where the facts are so clear and the finding so aberrant that it can be concluded that the Tribunal must have misdirected itself in some unexpressed manner. It is also worth noting that the reasons of the learned Federal Magistrate do not grapple with the effect of s 91R in a case such as this, nor with the question of State involvement discussed in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 78 ALJR 678, (2004) 205 ALR 487. 11 The appeal is granted. The orders made below are set aside. In lieu thereof the application to the Federal Magistrates Court should be dismissed and the respondent ordered to pay the costs of the application to the Federal Magistrates Court assessed at $3000. 12 It would normally be appropriate to order the respondent to pay the appellant's costs of the appeal. However, it would also be appropriate in this case to certify pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) for those costs. As the respondent is absent I will simply make no order as to the costs of the appeal. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.