FEDERAL COURT OF AUSTRALIA SZIBU & Another v Minister for Immigration and Citizenship & Another [2007] FCA 108 SZIBU & SZIBV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1898 OF 2006 COWDROY J 13 FEBRUARY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1898 OF 2006 BETWEEN: SZIBU & SZIBV Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: COWDROY J DATE OF ORDER: 13 FEBRUARY 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Appeal be dismissed. 2. The appellants pay the costs of the first respondent in the sum of $3000.00. 3. The name of the first respondent be amended to 'Minister for Immigration and Citizenship'. 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 1898 OF 2006 BETWEEN: SZIBU & SZIBV Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: COWDROY J DATE: 13 FEBRUARY 2006 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellants appeal from a decision of Federal Magistrate Emmett delivered on 11 September 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') dated 25 November 2005 and handed down on 15 December 2005. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ('the Minister') to refuse to grant a Protection visa to the appellant. 2 The appellants are Indian nationals and are, respectively, husband and wife. The appellants arrived in Australia on 21 April 2005 and lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ('the Department') on 24 May 2005. The appellant wife had no claims of her own and relied on membership of the appellant husband's family unit. The Minister refused the application for a Protection visa on 8 July 2005. On 25 November the appellants applied for a review of that decision. The appellants were invited to, and attended a hearing. The appellant husband attended and was assisted by a Gujarati interpreter. In this judgment I shall refer to the husband as the appellant. 3 Before the Tribunal the appellant explained that the information provided in his application for a Protection visa was not as he had explained to his migration adviser. Instead he claimed that he had suffered troubles after opening a business in 2002 he was the subject of extortion and threats from local thugs, to whom he also referred to as 'terrorists'. The appellant claims that he complained to the police and they demanded payment. The appellant asserts he did not pay the police and his bicycle was subsequently stolen. The appellant claims his business was attacked and goods were damaged. He was unable to pay the suppliers of his business and lost his savings. The appellant claimed that he was afraid of the thugs. THE DECISION OF THE TRIBUNAL 4 The Tribunal found that the appellant was subjected to harassment, property damage and loss because 'he refused to pay off a group of local thugs' and that the appellant could not obtain a satisfactory response from the police in the town at Mansa. The Tribunal, however, found that despite this the police at Gandhingar took the complaints of the appellant seriously and that he was able to return there. The Tribunal found that the problems experiences by the appellant were not for a convention reason. Further, the fact that the children of the appellant continue to reside in India and that the appellant closed his shop before leaving for Australia suggested to the Tribunal that the appellant was not of continuing interest to the particular local gang. GROUNDS BEFORE THE FEDERAL MAGISTRATE 5 On 11 January 2006 the appellant applied for judicial review of the decision of the Tribunal. Before Emmett FM the appellant claimed the following in an amended application dated 28 April 2006: '1. The Tribunal committed a serious jurisdictional error by it 'overt reliance' that the Applicant suffered harassment, loss of business and property damage in the hands of the "Thugs" whereas what the Applicant said it was the terrorists, meaning "Muslim Terrorists" who attacked Hindu Businessmen for supporting the Hinduism and Hindu people during the communal troubles between Muslims and Hindus that was ongoing in Gujarat after the "Godhra" train massacre. 2. The Tribunal made a further jurisdictional error by its misconceived finding to the effect:- "Police at Mansa failed to protect the Applicant from the harm he faced because of their own corruption and greed. There is no evidence that they imputed to the Applicant political opinion or profile as a result of his stand against their corruption". (Court Book Page 79). The Applicant submit [sic] that the Tribunal failed to assess that it was the Applicant's religious activity as Hindu and the support given to other Hindus against Muslim Terrorists was the cause of all the Troubles the Applicant had. 3. The Tribunal made yet another jurisdictional error because of its failure "to assess whether there would be a "real chance" that the Applicant may suffer persecution once again or whether there would [sic] a threat of "serious harm" to the Applicant or his wife, if the applicant would be asked to re-locate back in another part of India."' THE DECISION OF THE FEDERAL MAGISTRATE 6 Emmett FM stated that the Tribunal had found that there was no claim to fear harm from 'terrorists' by reason of the appellant's political opinion, perceived political opinion or imputed opinion. Her Honour found that the contextual understanding of the use of the word 'terrorist' was correct. 7 Emmet FM found that the Tribunal's finding that 'police at Mansa failed to protect the applicant from the harm he faced because of their own corruption and greed' was one which was open to it on the evidence and material before it. 8 Her Honour also found that it was open to the Tribunal to conclude that there was no real chance of persecution in the reasonably foreseeable future where it was not satisfied the appellant had suffered any Convention related harm. The claims of the appellant were rejected on this basis. Relocation, although put to the appellant during the hearing, was not adopted by the Tribunal as part of its reasoning for rejecting the claims of the appellant. NOTICE OF APPEAL 9 The Notice of Appeal raised the following grounds: 'A. The Appellant submit that the learned Federal Magistrate erred by failing to recognise Applicant's Solicitor's argument that the Tribunal failed to carry out the review in a constructive manner because it misconceived its findings as follows:- "Police at Mansa failed to protect the Applicant from the harm he faced because of their own corruption and greed. There is no evidence that they imputed to the Applicant political opinion or profile as a result of his stand against their corruption". (COURT BOOK Page 79, para 05). The Appellant submits that the learned Federal Magistrate in her judgment made the following finding (paragraph 10): "Whilst I accept that the word "terrorist" may attract a Convention nexus, the use of the word must be considered in the context in which it is made and in the manner in which the assertion is dealt with by the Applicant in his oral evidence." B. That the learned Federal Magistrate failed to consider the Applicant's Solicitor's argument that the Tribunal made yet another jurisdictional error because of its failure to assess whether there would be a "real chance that the Applicant will face serious harm, when it concluded: "…The Tribunal cannot be satisfied that the Applicant had suffered any Convention related harm, nor is there a real chance of such treatment occurring in the reasonably foreseeable future". (COURT BOOK page 81 – para 02). The Appellant submits that the learned Federal Magistrate failed to consider that the Applicant's Solicitor's argument when the learned Magistrate made the following finding was made in avoidance of that argument:- "… although the Tribunal put to the applicant during the hearing that he could avoid harm by re-locating within India, it did not adopt that finding as part of its reasoning for rejecting the Applicant's claims. The Tribunal's finding was simply predicated on the basis that it did not accept that any harm suffered by the Applicant was Convention related". (Judgment para 31)' Submissions of the parties 10 The appellant appeared assisted by an interpreter. As no written submissions had been provided by him he was invited to make oral submissions. He stated that he was still in a state of tension and afraid of 'the people' who had caused trouble. He stated that 'the people' were Muslims. When asked why he was afraid, he said that he used to pay money to the Hindu temple causing anger to the Muslims. He claimed that the Muslims and the police had come together to take money from him. He claimed that the police at Gandhinagar did not help him. He claimed that he was taking medication for depression. 11 The Minister submitted that the appellant had provided a statutory declaration before the Tribunal which set out the facts relied upon in support of the appellant's claim for refugee status. The statutory declaration sought to correct earlier information provided in the appellant's protection visa application, the appellant claiming that his adviser provided wrong information. The Minister submits that the statements made the appellant before this Court could not be accepted since no mention was made in the declaration that the hostility referred to by the appellant arose from religious differences. This was raised for the first time before Emmett FM. FINDINGS 12 It is apparent that the facts raised before this Court by the appellant are inconsistent with the facts the appellant raised before the Tribunal. The Tribunal was concerned that the appellant had not raised a Convention reason in support of his claim. The Tribunal's reasons on this issue state: 'The Tribunal noted that at the beginning of the hearing it had explained the definition of a refugee contained in the United Nations Convention. It also reminded him of the five Convention reasons which it had referred to and asked which of the reasons in his view applies to his circumstances. He replied that he was afraid to go back to India because those thugs will kill him.' There was no mention before the Tribunal that the 'thugs' were Muslims, nor that payments by the appellant to a Hindu Temple were the cause of the claimed hostility. 13 The Tribunal also said: 'Although the police at Mansa allegedly did not change their attitude, the Tribunal concludes that it remained open to the applicant to go back to Gandhinagar where the police had shown themselves to be circumspect and diligent.' Such factual finding is inconsistent with the claims made by the appellant today. 14 Despite these factual differences it must be noted that this Court is concerned with the existence of errors of law demonstrated in the Federal Magistrates Court. This Court has no power to undertake a merits review of the decision of either the Tribunal or the Federal Magistrate. The role of the Court in an appeal such as this was stated succinctly by Mason J (as he then was) in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40- 41, where his Honour said: 'The limited role of a Court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of a Court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation [41].' (a) Did the Federal Magistrate err in her interpretation of the word 'terrorist'? 15 The Tribunal found 'there is no evidence that they [police at Mansa] imputed to the applicant a political opinion or profile as a result of his stand against their corruption'. 16 Federal Magistrate Emmett carefully considered this ground and observed that the Tribunal proceeded on the basis of the appellant's statutory declaration in which he alleged that his migration adviser had written erroneous statements. 17 Emmett FM noted that the fear of the appellant arose form the attack on his business by 'thugs'. Her Honour noted at paragraph 19 of the judgment: 'It is quite clear in the disclosure by the Tribunal of the exchange between it and the applicant that the applicant had every opportunity to expand upon the harm that he feared in India. It is also plain that the applicant's responses about the object of his fears were confined to the activities and conduct of the people who sought to extort money from his business, and whom he was interpreted as describing as "area thugs.", Again, there is no evidence before me that such interpretation was inaccurate.' 18 Her Honour noted that the Tribunal accepted that the content of the appellant's written statement and his oral evidence accurately reflected the claims he wished to make. However Her Honour found: 'The use of the word "terrorist" by the applicant, in his statutory declaration, when taken in context, cannot be reasonably thought to go beyond the claims made by the applicant in relation to the harassment he suffered at the hands of the "area thugs". There is no evidence before me to suggest that the Tribunal's exchanges are anything other than complete and accurate. Nowhere in the applicant's responses or oral evidence, as referred to in the Tribunal's decision, is there a claim that the applicant suffered this harm because of any political opinion or imputed political opinion. Indeed, the Tribunal noted that there was no evidence that the conduct of the police, in ignoring the applicant's complaints, arose out of any political opinion or profile imputed to the applicants as a result of his stand against their corruption. The Tribunal found that the police at Mansa failed to offer protection to the applicant, not because of any Convention related reason, but rather out of their own corruption and greed.' 19 Her Honour concluded: 'A fair reading of the decision does not disclose a claim by the applicant that he had a fear of harm from "terrorists", because of any political opinion or perceived political opinion, or imputed opinion.' 20 I am unable to find any error in Her Honour's reasoning. The evidence simply does not establish that the motivation of the 'thugs' resulted from any conduct which could establish the refugee status of the appellant under the Convention. I am satisfied that her Honour made no error in her conclusion. Accordingly this ground must be dismissed (b) Failure by Federal Magistrate to consider claim relating to relocation 21 The Tribunal in its deliberations asked the appellant whether he could reasonably relocate to another part of India. He replied that the thugs 'would just ask around and would be able to locate him'. The Tribunal, having considered all the evidence, found as follows: 'Taking into consideration the evidence as a whole, the Tribunal cannot be satisfied that the applicant had suffered any Convention-related harm, nor is there a real chance of such treatment occurring in the reasonably foreseeable future. It therefore finds that the applicant does not have a well-founded fear of persecution within the meaning of the Convention.' 22 Emmett FM found that the inquiry of the Tribunal relating to relocation and the answer provided by the appellant did not form part of its reasoning for rejecting the appellant's claims. Rather, the Tribunal did not accept that any harm which might have been suffered by the appellant was for a Convention reason. 23 The Minister has drawn the Court's attention to the recent decision of the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2006] HCA 63 in which it was held that a denial of procedural fairness resulted because the Tribunal did not provide the appellant with the opportunity to address matters which were critical to the Tribunal's determination but which had not been challenged by the delegate of the Minister when the Minister's decision was made. In the current proceedings the Tribunal specifically raised with the appellant the need to identify a Convention reason for his application, and the Court is satisfied that no issue arises of the kind referred to in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2006] HCA 63. 24 The Court is satisfied that the finding of Emmett FM was open to her on the evidence. There was simply no evidence to suggest that the conduct directed to the appellant, which the Tribunal accepted, resulted from a Convention reason. For these reasons the Court finds that that there is no jurisdictional error in her Honour's decision and accordingly the Court dismisses the appeal. 25 The Minister has sought an order that the appellant pay the costs of the Minister in the sum of $3000.00. As this is within a reasonable range of costs I will make the order sought. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 13 February 2006 Counsel for the Respondent: D Jordan Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 13 February 2007 Date of Judgment: 13 February 2007