SZGPZ v Minister for Immigration and Multicultural Affairs [2006] FCA 683

FEDERAL COURT OF AUSTRALIA

SZGPZ v Minister for Immigration and Multicultural Affairs [2006] FCA 683 SZGPZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & REFUGEE REVIEW TRIBUNAL NSD 328 OF 2006 COLLIER J 26 MAY 2006 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY NSD 328 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGPZ

First Appellant

SZGQA

Second Appellant

SZGQB

Third Appellant

SZGQC

Fourth Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: COLLIER J

DATE OF ORDER: 26 MAY 2006

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. To the extent that leave to appeal to this court was required to hear the appeal - leave to appeal is refused. 3. The appellants are to pay the costs of the first respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY NSD 328 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGPZ

First Appellant

SZGQA

Second Appellant

SZGQB

Third Appellant

SZGQC

Fourth Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: COLLIER J

DATE: 26 MAY 2006

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Emmett FM of 14 February 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 15 December 1997. The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant protection visas to the appellants. 2 The appellants are husband and wife and two of their children, and are citizens of Fiji. Their claims for refugee status are based on the appellant husband's claims of persecution. His claims of persecution are based on his ethnicity and religion. He claimed that as an ethnic Indian living in Fiji after the 1987 political coup, indigenous Fijians attacked his shop, beat him and harassed and threatened his family. The first appellant attended a Tribunal hearing. 3 The Tribunal accepted that the appellants may have suffered some difficulties after the coup as claimed, however it concluded that such treatment was the result of ordinary criminal conduct. It noted that the only serious incident experienced by the appellants was motivated by criminal behaviour and was dealt with by the authorities. The Tribunal found, on the evidence before it, that the first appellant did not in the past experience ill treatment of a level severe enough or systematic enough to constitute persecution, and that the Fijian authorities had provided effective protection to the appellants in respect of their complaints. The Tribunal concluded that the first appellant did not face a real chance of persecution in the reasonably foreseeable future were he to return to Fiji. 4 Before the Federal Magistrate the appellants claimed that the Tribunal: · failed to provide independent country information to the appellants prior to the Tribunal hearing as it was information with which the appellants were not familiar, · used that information in a biased way, · erred in the application of a test in relation to its relocation finding, and · failed to consider whether the first appellant was a member of a particular social group, being owners of "vulnerable" businesses that were persecuted. 5 The appellants also made general complaints about the factual findings made by the Tribunal. 6 The respondent Minister submitted that there was an unwarrantable delay of seven years from the time the Tribunal made its decision to the date the appellants commenced their application in the Federal Magistrates Court. 7 The Federal Magistrate rejected the appellants' grounds on the basis that they were misconceived and they could not be made out on the evidence before her, and that none of the grounds raised by the appellants had sufficient prospects of successfully identifying jurisdictional error in the Tribunal decisions. Furthermore, the Federal Magistrate, having regard to the length of the delay in filing their application and the inadequacy of their explanation, refused to grant discretionary relief to the appellants. 8 By a Notice of Appeal filed on 20 February 2006, the appellants claim that the Federal Magistrate: · should have found that the respondents were estopped from relying on delay as a ground of response to the appellants' application, · denied them natural justice by allowing the respondents to raise delay as a ground of response, · erred in finding that the period of communication with the respondent Minister pursuant to s 417 of the Migration Act 1958 (Cth) ("the Act") did not constitute sufficient explanation for the delay, · should have found that the Tribunal breached the rules of natural justice in connection with the making of its decision and denied procedural fairness in relation to the decision, · was biased and did not exercise the powers authorised by the Act, · misconstrued the test in relation to persecution and harm, and erred or misapplied the test in relation to the Convention reason, · failed to apply the test of social class in relation to the claim, and/or · erred in finding there was effective state protection. 9 Before me in court yesterday morning, counsel for the Minister drew to my attention some minor anomalies in the Court Appeal Book and its contents. These anomalies arose from the inclusion of an affidavit which had not been read into the transcript before Emmett FM and ought not to have been included. As a result, the parties before me yesterday morning agreed that, for the purpose of the Appeal Book, the affidavit of Mr Rizarum dated 4 November 2005 and listed as item 3 in the appeal book was removed from the book. Included in the appeal book are pp 12-16 of the transcript of evidence before her Honour, Emmett FM, and two affidavits, one of Ritesh Sharma dated 30 January 2006 and one of Elizabeth Warner-Knight dated 31 January 2006. I note these amendments for the record. They do not impact on my decision in this case. 10 The appellants were not legally represented by counsel before me yesterday morning. An interpreter was present in order to translate the proceedings into Hindi. The appellants made no formal submissions orally but indicated that they would rely on their written submissions. The first appellant, through the interpreter, stated at the end of the hearing that he wished to remain in Australia, he had nowhere to live in Fiji, and he was afraid of being killed if he returned to Fiji. 11 The Minister, both in writing and through counsel at the hearing yesterday morning, submitted that, as the learned Federal Magistrate's decision was ultimately that the application should be dismissed on discretionary grounds, the judgment was an interlocutory judgment and therefore the application should be treated as an application for leave to appeal. This is required by s 24(1A) Federal Court of Australia Act 1976 (Cth) which provides: An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the court or judge gives leave to appeal.