FEDERAL COURT OF AUSTRALIA SZFAI v Minister for Immigration and Multicultural Affairs [2007] FCA 895 SZFAI AND SZFAJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD 1835 OF 2006 ALLSOP J 15 JUNE 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1835 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZFAI First Appellant SZFAJ Second Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: ALLSOP J DATE OF ORDER: 15 JUNE 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The notice of appeal be taken to be amended to include grounds as contained in the Amended Application, being annexure F to the affidavit of the appellants sworn 22 September 2006. 2. The appeal be 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 1835 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZFAI First Appellant SZFAJ Second Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: ALLSOP J DATE: 15 JUNE 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal form orders made by the Federal Magistrates Court (the "FMC") on 5 September 2006. The application before the FMC was the review of a decision of the Refugee Review Tribunal (the "Tribunal") that affirmed an earlier decision of a delegate of the first respondent not to grant the appellant and her husband protection visas. 2 The appellants are husband and wife. Only the wife made claims under the Refugees Convention. Thus, like the Federal Magistrate, I will refer to the appellant in the singular. 3 The grounds of appeal include a claim that the appellant was denied procedural fairness by the FMC by failing to decide the matter on the basis of material sent to the FMC after the hearing. There was a body of somewhat confused evidence before me about the assertions made by the appellant that she sent documentaion to the FMC in August 2006. As I will explain in more detail in due course, it is unnecessary to resolve these disputed questions of sending and receipt, or lack thereof, of the documents to and by the FMC and the associate to the Federal Magistrate. This is so because the first respondent was content for me to take into account what the appellant said she sent and all the other documentation submitted on the appeal. None of this material, treated as evidence on the appeal, provided, the first respondent submitted, any ground upon which to conclude that the Federal Magistrate erred in her conclusion that there was no relevant error in the Tribunal's decision and reasons. 4 It is necessary, therefore, to examine the claims of the appellant and the Tribunal's approach to them. 5 The claims of the appellant were summarised by the Federal Magistrate in [3] and [4] of her reasons as follows: [3] The applicant claimed to fear persecution for reason of her political opinion. In her protection visa application she claimed that she was a qualified lawyer who had been involved in a number of political debates at Ulaan Baatar University and that in September 1996 she joined the newly established New Leaders Club and became an active member, supporting activities and participating in the club's projects. Initially the club was said to be supported by the government but the applicant claimed that at the end of 2003 the relationship deteriorated because some members of the club, including herself, were involved in a campaign of criticism of issues within the ruling structure of the country including the government and law enforcement agencies, in particular in relation to corruption and the inability of the government to improve the economic situation. [4] It was claimed that active members of the club had started to agitate against the Mongolian Peoples Revolutionary Party (MPRP) (the ruling party). The applicant claimed that this attracted adverse interest in club members and in her personally from law enforcement officers. At the end of December 2003 officers of the National Security Services had visited her workplace and the workplace of other members of the club who worked at the university and questioned her about the club's plans in relation to forthcoming elections, political structure and their proposals for agitation and propaganda during the election campaign. She claimed that the officers told her that they had information that leaders of the club, including herself, had been involved in fabrication of facts accusing the leaders of the country of corruption and misuse of power. She denied any such involvement but understood from the officers' response that she could be set up. She claimed that she was warned she must stop criticising government officials and concentrate on other issues but that nonetheless she and other club members decided to continue their activities and ignore the warnings. She claimed that she was warned again by the same security officer that she might face serious consequences if she continued her political activities. She claimed that she understood that the threats to have her charged with "anything that they wanted" could be implemented. She left Mongolia 6 After a delegate of the first respondent had declined to grant a protection visa, a decision of the Tribunal was made affirming that decision. That Tribunal decision was set aside, by consent, by orders made by the FMC. A second Tribunal hearing took place on 23 May 2005. 7 The day after the hearing, 24 May 2005, the Tribunal sent a letter to the appellant taking up an issue about per capita income in Mongolia that had been raised at the hearing. The letter also stated that the appellant had until 4 July 2005 (another six weeks) to produce any further relevant evidence. 8 On 1 July 2005 the appellant's then representative wrote a letter to the Tribunal in the following terms: [name of applicant] instructed me to submit to the Tribunal that despite intensive search she was unable to locate any further evidence to support her claims. This has happened due to limited sources of information on Mongolia. The applicant appreciates if the Tribunal provides her with additional time to submit further evidence. 9 The Tribunal wrote back on 4 July 2005 refusing any further extension of time. 10 The Tribunal made its decision on 15 July 2005, and handed it down on 16 August 2005. 11 The Federal Magistrate in [8]-[14] of her reasons adequately summarised the approach of the Tribunal in the following terms: 8. On 16 August 2005 the second Tribunal handed down its decision. It is this decision that is the subject of these proceedings. The Tribunal outlined the evidence given in the applicant's original application and the accompanying statement and the evidence given by her at the Tribunal hearing. It referred to independent country information in relation to the situation in Mongolia. The Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if she returned to Mongolia and resumed her past involvement in political activities opposed to the MPRP. The Tribunal did not accept that there was a real chance that she would face persecution involving serious harm by reason of her real or imputed political opinion or for any other Convention reason if she returned to Mongolia. 9. The Tribunal found that, as it stated that it had put to the applicant in the hearing, while it accepted that the June 2004 Parliamentary election was marred by numerous irregularities, there was nothing in the information available to it to suggest that people campaigning in the election were threatened by security forces under the control of the government. Nor was there anything in particular to suggest that people had been falsely charged with criminal offences as a result of their expression of political opinions in Mongolia. The Tribunal also stated that there were no reports before it of arbitrary or unlawful deprivation of life committed by the Mongolian government or its agents in 2004 or of politically motivated disappearances or political prisoners. 10. The Tribunal recorded the applicant's comments in relation to the independent information (that this did not record with the reality). The Tribunal accepted that the electronic media in Mongolia continued to be monopolised by the government or by entities associated with the former government, but found that, having regard to the independent information, it remained of the view that the applicant's claims regarding her persecution by National Security Services or by the Mongolian Intelligence Department for reasons of her involvement in the New Leaders Club were not credible. It did not accept that the applicant or other members of the club were threatened by an officer or officers from the National Security Services or the Intelligence Department in an attempt to make them cease their political activities or to put pressure on the applicant to provide information about the club's plans for the Parliamentary elections held in Mongolia in 2004. 11. The applicant had also claimed that she had had an involvement in a Mongolian national television programme which ended at the end of 2003. The Tribunal did not accept that this amounted to persecution involving serious harm, noting that the applicant was not dependent upon her income from her work for the television programme and that she earned an income as a lecturer which was above average by Mongolian standards. 12. The Tribunal also had regard to the applicant's claims about termination of her practising certificate as a lawyer. It found, in light of her evidence that she was unable to afford to pay the fees for the second year of her studies, that it was terminated because she had not paid the membership fee and tax and not for other reasons as suggested at the hearing. The Tribunal did not accept on the evidence before it that the applicant would be unable to obtain employment for a Convention reason if she returned to Mongolia or that she would be limited to jobs so poorly paid or so out of keeping with her qualifications as to constitute persecution for the purposes of the Convention. It did not accept that she was denied the opportunity to use her skills for a Convention reason or that there was a real chance that she would be denied such an opportunity for a Convention reason if she returned to Mongolia now or in the reasonably foreseeable future. 13. The Tribunal accepted that, as the applicant told it, her father and brother were members of the MPRP so that she faced difficulties with her family, but did not accept that such family difficulties, without more, amounted to persecution for the purposes of the Refugees Convention. 14. The Tribunal concluded that it was not satisfied the applicant had a well-founded fear of persecution for a Convention reason if she returned to Mongolia. As the applicant's husband did not make specific claims in his own right, because his wife was not a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol, nor was he. The Tribunal affirmed the decision not to grant protection visas. 12 The Tribunal essentially based its conclusions on the independent country information and the material provided to the Tribunal at the hearing by the appellant. It should be noted that at page 7 of its reasons the Tribunal drew two factual comparisons between what the appellant had stated in her original application and what she stated at the hearing. These inconsistencies, however, played no part whatsoever in the reasoning of the Tribunal. There is no basis to consider that there might have been a failure by the Tribunal to comply with s 424A of the Migration Act 1958 (Cth). 13 The application filed in the FMC contended that the Tribunal had erred by failing to consider a substantial claim of the appellant and by ignoring relevant material. The Federal Magistrate recorded in [15]-[20] of her reasons what happened at the hearing, in the following terms: 15. The applicants filed an application for a review of the Tribunal decision in this Court on 20 September 2005 in which it was contended that the Tribunal had made a jurisdictional error in that it "failed to make findings upon or otherwise consider a substantial claim of the applicant being that she was persecuted for the reason of her political opinion" and that the Tribunal "erred in law by ignoring relevant materials in a way that affects the exercise of the Tribunal's power". 16. The applicant who is self-represented, did not file written submissions. At the hearing she said that she had recently given birth, that her baby was at home and that she needed to return home to feed the baby. She told the Court that she would like the matter dealt with on an amended application "submitted" on 30 March 2006 and did not wish to make oral submissions. However as I informed the applicant no amended application had been filed. The solicitors for the respondent confirmed that they had not been served with any amended application. The applicant did not have a copy of the claimed amended application. She said that her migration agent had the amended application. 17. I adjourned the hearing for a short time to enable the applicant to telephone her migration agent and obtain a copy of any amended application – which could be faxed to the Court. However when the hearing resumed the applicant said that the agent had "sent" all the documents but as he was not in his office he could not fax it right away. It was agreed that time would be allowed for the filing of a copy of the amended application. It was also agreed that, as the applicant had proposed, the Court would determine the application on the basis of the amended application and subsequent written submissions from the respondent and the applicant. The applicant confirmed that she had nothing to add to what was in the amended application. 18. It was ordered that the applicant file and serve a copy of any amended application on or before 3 August 2006, that the respondent file and serve further written submissions by 14 August 2006 and the applicant file and serve any written submissions in reply by 1 September 2006. Each party was given liberty to apply on two days notice. 19. It was, however, explained to the applicant and noted in the orders that if no amended application was filed by the applicant, the application would be dealt with on the basis of the application of 20 September 2005. The applicant did not seek to make any oral submissions. 20. No amended application or any other material has been filed by the applicant since the hearing. Nor has any explanation been provided for the failure to file a copy of the amended application. Accordingly I have considered the grounds raised in the application of 20 September 2005. The respondent relies on written submissions filed on 2 June 2006. Despite the applicant's failure to file any amended application and expressed wish that she not participate in the hearing, as she is self-represented I have considered not only the grounds in her application but also whether any jurisdictional error is apparent on the material before the Court. 14 The Federal Magistrate thereafter dealt with the application by reference to the unamended application. For reasons that are set out in [21]-[25] of her reasons, the Federal Magistrate concluded that the Tribunal did not fail to make relevant findings and did not ignore any substantive claims of the appellant. 15 The notice of appeal contained three grounds. The second ground was an unarticulated reliance on Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The third ground was an unarticulated reliance on SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74. No error of the Federal Magistrate was the subject of address by reference to these cases. 16 The first ground of appeal was to the effect that the Federal Magistrate had denied the appellant procedural fairness. The ground read as follows: 1. The applicant was deprived of receiving procedural fairness as follow It was ordered that the applicant file and serve a copy of any amended application on or before 3 August 2006, that the respondent file and serve further written submissions by 14 August 2006 and the applicant file and serve any written submissions in reply by 1 September 2006. The applicant sent an amended application by fax (the fax number is 9230 8294, which is given by the judge on August 2006) on August 2006. It was noted in the order that they had not been served with any amended application. That's why the application was dealt on the basis of the application of 20 September 2005. But the applicant has sent the amended application on 3 August 2006. The Honorable trial judge erred in considering this issue. 17 The appellant filed an affidavit in the appeal in which she swore that on 3 August 2006 she: "…faxed amended application to the Federal Magistrate Court. Annexed and marked "F" is the amended application." 18 When the matter came on before me on 19 February 2007, I allowed the appellant to supplement her evidence orally. The evidence, including cross-examination, was somewhat confused. There was no record of any facsimile being received in the Federal Magistrate's chambers. It is possible that the amended application was received in the Registry, but did not catch up with the file. This possibility is made more likely by the incorrect entitlement of the amended application. I have annexed a copy of the application to these reasons. After attempting to understand the somewhat confused evidence of the appellant, I proposed that I would proceed on the basis that I would permit the notice of appeal to be amended in a form reflecting the grounds in the amended application and permit fresh evidence to be led on the appeal. I dispensed with the need to file a fresh amended notice of appeal. The first respondent did not oppose this course. 19 On 19 February 2007 the appellant tendered some Mongolian newspapers. I marked these as MFI 1 on that day. I then made directions for the filing of any further evidence and written submissions and stood the matter over to 27 March 2007. 20 On 9 March 2007 the appellant filed another affidavit (purportedly a joint affidavit of the wife and husband) which contained submissions in support of the amended application and further Mongolian newspapers translated. 21 The amended application took issue substantially with the conclusions that the Tribunal drew about Mongolia: see in particular paragraph 1 (including a, b and c) and the final unnumbered paragraph. Likewise, the affidavit filed on 9 March 2007 was a restatement of the case of the appellant, supported by material that was not before the Tribunal. None of this material revealed any error by the Tribunal, let alone a jurisdictional error. 22 Paragraph 2 of the amended application did articulate facts capable of being seen as a claim for a recognised ground of jurisdictional error – that is, a denial of procedural fairness. The appellant there complained of the shortness of time given by the Tribunal (6 weeks) to put further material to the Tribunal. This complaint is without foundation. The period of six weeks was reasonable, as was the refusal of any further time. The application for review had been on foot since May 2004. Further, there was no indication in the representative's letter of 1 July 2005 that there was any particular document that would be, or could possibly be, obtained. There was no denial of procedural fairness. 23 At the resumed hearing on 27 May 2007, the appellant's affidavits were read and material tendered and marked. 24 There was no argument put forward to found a conclusion that there was any error in approach of, or jurisdictional error exhibited by, the Tribunal. Much of the material put forward was a challenge to the merits of the conclusions reached by the Tribunal. There was no reason to conclude that the Tribunal had denied the appellant procedural fairness. 25 Therefore, even accepting that one should approach the matter on the basis of the amended application that the appellant said she sent to the FMC, there is no basis to conclude that the orders of the FMC dismissing the application should be set aside. 26 The orders of the Court will be: 1. The notice of appeal be taken to be amended to include grounds as contained in the Amended Application, being annexure F to the affidavit of the appellants sworn 22 September 2006. 2. The appeal be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 15 June 2007 The Appellant appeared in person with the assistance of an interpreter. Counsel for the Respondent: Ms S Lloyd Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 19 February 2007 & 27 March 2007 Date of Judgment: 15 June 2007 Annexure A