FEDERAL COURT OF AUSTRALIA SZHRQ v Minister for Immigration and Citizenship & Anor [2007] FCA 327 Migration Act 1958 (Cth) SZHRQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 2137 OF 2006 DOWNES J 8 MARCH 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2137 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZHRQ Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: DOWNES J DATE OF ORDER: 8 MARCH 2007 WHERE MADE: SYDNEY THE COURT ORDERS: 1. Amend the title of the first respondent to 'Minister for Immigration and Citizenship'. 2. Application for leave to appeal dismissed with costs. 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 2137 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZHRQ Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: DOWNES J DATE: 8 MARCH 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant is from India. He is aged 28 years. He came to Australia in March 2005 and applied for a protection visa. He claimed a well‑founded fear of persecution within the Refugees Convention on the grounds of his Muslim religion and, to some extent, his membership of the Muslim Union Party. In particular, he claimed to fear persecution by the Hindu father of his former girlfriend. His application was refused on 26 May 2005 and that decision was affirmed by the Refugee Review Tribunal on 15 November 2005. The appellant appealed to the Federal Magistrates Court. His application was dismissed on 6 October 2006. He seeks leave to appeal to this Court against that decision. 2 The appellant filed his notice of appeal four days outside the statutory time limit. He therefore requires leave to appeal. In an affidavit, the appellant has stated that the delay was caused by his own miscalculation and that he will "be put to hardship" if leave is not granted. No particulars were given. Nevertheless, I can understand that there are circumstances in which appellants, particularly unrepresented appellants, might be confused as to the time limited for appeal; particularly when such time limits are not always uniform. I can also understand that the consequence of not being able to appeal may be hardship in the case of an appeal against refusal of a protection visa. However, I propose to put these matters aside for the moment while I consider the merits of the appeal if leave were granted. 3 The system of dealing with applications for refugee status in Australia gives applicants two opportunities to put a case on the merits. First, they can put a claim to the Minister, usually through the Minister's delegate. Secondly, if that claim is not successful, they can seek review of the decision by the Refugee Review Tribunal. The Refugee Review Tribunal reconsiders the claim on its merits. It is in no way influenced in determining the facts of the case by the result before the Minister. 4 For practical purposes, there is also an appeal on a question of law, usually confined to jurisdictional error, to the Federal Magistrates Court with a further appeal to this Court. The Parliament, representing the people, has accordingly given refugee claimants two separate opportunities to put a case on the facts, with an appeal in the event of error of law amounting to jurisdictional error. The appeal is however confined to legal questions and does not permit reconsideration of decisions relating to the facts, except in a special class of cases in which errors relating to the facts can give rise to errors of law. 5 This case is in reality a case which the appellant has lost on the facts. The Refugee Review Tribunal, constituted by Dr Ron Witton, rejected the appellant's claim on three alternative bases. First, it found that "the essential and significant motivation for the persecution feared is a personal dispute arising from the applicant's former relationship to this person's daughter" rather than a Convention reason. Secondly, although the girlfriend's father was purportedly a politician, the Tribunal found there was "no evidence that the girl's father, should he use any political influence to which he has access, would be using the power of the State to harass or harm the applicant". Thirdly, the Tribunal concluded that it would be reasonable for the appellant to relocate within India. It rejected a submission that the appellant would be tracked down wherever he might go. 6 The only appeal available to the appellant must relate to the law. Accordingly this appeal must address questions of law. This raises problems for the many appellants who are in a similar position to the appellant having lost their claim to refugee status because of findings of fact. However, if there is a relevant error of law an appeal will be successful. Accordingly I now turn to that question. 7 I have before me some draft grounds of appeal which the appellant would seek to rely upon if leave were granted. The grounds are generalised and contain no particulars. The three grounds in the paragraphs numbered as 2, 1 and 2, as well as the grounds numbered 3 and 6, effectively say no more than that the decisions below were wrong. This morning, the appellant filed in court written submissions which address, broadly speaking, the second draft ground of appeal numbered 2. After receiving this document I adjourned the court to enable me to read the grounds. The relevant ground, as it appears in the draft notice of appeal, claims that the Tribunal and the Federal Magistrates Court erred by not finding that the appellant satisfied the four key elements that are required to satisfy the Convention definition of a refugee. The submissions filed this morning seek to add to this submission and in particular to identify five matters not taken into account or not given appropriate weight by the Tribunal. Unfortunately, all of the matters raised in the document relate to factual considerations. As I have said, it is not open to this Court to reconsider the facts of this case because the Parliament has determined that the final arbiter of the facts should be the Refugee Review Tribunal. I can only look at whether there are errors of law in the way in which the Tribunal went about finding the facts. The written submissions furnished today do no more than urge me to reconsider the findings of fact and to uphold the version of the facts which the appellant now seeks to put before the court. It is not open to me to do this. It follows that the grounds numbered 2, 1, 2, 3 and 6 cannot be sustained. 8 The grounds numbered 7, 8 and 10 are slightly more specific but address the merits. That leaves draft grounds 4, 5, 9 and 11. Grounds 4 and 9 complain about the use by the Tribunal of country information. The Tribunal was entitled to use this information. These are also effectively grounds relating to the merits and must fail. 9 Ground 5 relates to the finding that it was reasonable for the appellant to relocate. I first note that this was an alternative basis for the Tribunal's decision. Even if it was not sustainable, that alone, without some error in the other grounds the Tribunal relied upon, would not affect the validity of the Tribunal's decision. In any event I can find no error in the finding. There are two elements in a relocation finding: (1) it is possible for the applicant safely to relocate; and (2) it is reasonable to expect the applicant to relocate. The Tribunal's decision places emphasis on the second part of the test but that assumes a positive finding on the first part of the test. That is how the Tribunal's reasons should be understood. So understood there was no error of law. 10 Ground 11 raises bias. It is said that the Federal Magistrates Court had decided to dismiss the case before completely hearing it. This is a serious accusation. However, it has no substance. There is nothing before me which suggests that Barnes FM did other than give the most careful consideration to this case. It is not only appropriate that judges hearing appeals, where appellants are presenting their own cases, should read and give preliminary consideration to the matter before entering the hearing room, it is very much in the interests of those parties that they should do so. If they did not, grounds which parties who do not have legal qualifications would not notice would be likely to be overlooked. In any event judges are not required to have blank minds; they are required to have open minds. Ground 11 must fail. 11 The draft grounds of appeal as amplified by the document filed this morning do not raise any ground which would assist in the appellant's claims for an order granting leave to appeal out of time. The oral submissions put to me this morning by the appellant did not do anything other than seek reconsideration of the facts. My reading of the decision of the Tribunal does not reveal any potential error of law. Barnes FM considered grounds of appeal that are substantially similar to those contained in the draft notice of appeal. She could find no error in the Tribunal's decision. I can see no error in her decision. It follows that I am not satisfied that an appeal, if leave were to be granted, would have merit. For these reasons the application for leave to appeal must be dismissed and will be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes Associate: Dated: 12 March 2007 Counsel for the Appellant: The Appellant appeared in person with the assistance of a Malayalam interpreter Counsel for the First Respondent: S Lloyd Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 8 March 2007 Date of Judgment: 8 March 2007