SZIRS v Minister for Immigration & Citizenship [2008] FCA 798

FEDERAL COURT OF AUSTRALIA

SZIRS v Minister for Immigration & Citizenship [2008] FCA 798

SZIRS and SZIRT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 320 of 2008

JESSUP J

20 MAY 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 320 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIRS

First Appellant

SZIRT

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J

DATE OF ORDER: 20 MAY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellants 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

NEW SOUTH WALES DISTRICT REGISTRY NSD 320 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIRS

First Appellant

SZIRT

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JESSUP J

DATE: 20 MAY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 These are appeals from a judgment of the Federal Magistrates Court of Australia, given on 7 March 2008, dismissing applications for judicial review in relation to a decision of the Refugee Review Tribunal ("the Tribunal"), signed on 29 May 2007 and handed down on 19 June 2007. In that decision, the Tribunal affirmed an earlier decision of a delegate of the respondent Minister not to grant the appellants Protection (Class XA) Visas under the provisions of the Migration Act 1958 (Cth) ("the Act"). 2 The appellants, who are husband and wife, arrived in Australia on 1 August 2005. The appellant husband based his application for a visa upon claims that he was an active member of the Shiv Sena Political Party in India, which was a supporter of the Bharatiya Janata Party ("BJP"). He claimed that he was the leader of Shiv Sena in a part of Ahmedabad City. He claimed to have been threatened several times by supporters of the Congress Party and to have been in fear of persecution on that account. 3 The appellant wife had no separate claim to fear persecution on her own account, but based her application for a visa upon the circumstance that she was a dependant of the appellant husband. I have been informed that she is aware of today's hearing, that she has no separate claims under the Refugees Convention, and that she is content for her appeal to follow the disposition of that of her husband. In the circumstances, I shall refer to the husband as the appellant. 4 The appellant filed an amended application in his proceeding in the Federal Magistrates Court, which was supported by a number of grounds. When he appeared in person upon the hearing of that application, he relied upon written submissions of some four pages in length. The Federal Magistrate reserved her decision for a period of about a month, and then published her reasons for her orders dismissing the application in some 98 paragraphs over 23 pages or thereabouts. I have read her Honour's reasons and I would express the view, with respect, that they deal in a careful and comprehensive way with each of the propositions advanced on behalf of the appellant, not only in the grounds set out in the amended application, but also in the grounds upon which he originally relied in his application before it was amended and with the submissions contained in the written document to which I have referred. 5 In this court the appellant set out two grounds in his Notice of Appeal, to which I shall come in a moment. In addition, he filed and relied upon an outline of submissions over some three pages. He represented himself in court today, but made it clear that he relied upon his Notice of Appeal and upon his outline of submissions, and that he had nothing further to add. Although the outline of submissions extends considerably beyond the scope of the Notice of Appeal, Ms Hooper, who represented the respondent Minister, has taken no formal point of that circumstance and has addressed her submissions to each of the matters relied upon by the appellant, whether they be referable to the Notice of Appeal or to the outline of submissions. 6 The first point upon which the appellant relies is, I think, the only one which appears both in the Notice of Appeal and in the outline of submissions. As set out in the Notice of Appeal, the point is as follows: Hon Federal Magistrate failed to hold that the Refugee Review Tribunal made a jurisdictional error when it misapplied the express and implied meaning of the term "well-founded fear" and "refugee" from the UN Convention, especially in relation to Appellant's fear of persecution from the ruling government supporters, police and the government authorities and BJP supporters. In dealing with this point, the Federal Magistrate observed that the Tribunal affirmed the decision of the delegate substantially because it did not believe the appellant's claims that he would suffer persecution of the kind to which he referred. In the view of her Honour, this had the result that questions such as the proper application and meaning of terms used in the Convention and in s 91R of the Act were of little or no significance in the way the matter was disposed of by the Tribunal. The simple fact was that the appellant had not established the underlying factual foundation that he even entertained a fear of the kind he asserted. In those circumstances his claim was destined to fail. 7 The Federal Magistrate pointed out that the Tribunal, in its decision, had identified what were described as the four key elements of the Convention definition of "refugee" and continued: Its decision demonstrates that it was not satisfied on each of the second, third and fourth elements. Indeed, once it concluded on the second element that the applicant's overall credibility could not be accepted and that the applicant did not have a genuine subjective fear of persecution, elements 3 and 4 could no longer be satisfied. The Tribunal's finding on this second element was ultimately a matter for it in its fact finding role. It is not the proper function of this Court to engage in impermissible merits review. Nothing contained in the material relied upon today by the appellant gives me any reason to doubt the correctness of the approach which the Federal Magistrate took, or the conclusion which her Honour reached in these respects. 8 The second ground in the Notice of Appeal is not supported by anything contained in the appellant's written outline of submissions. The ground is as follows: The Tribunal did not consider that the definition of refugee required that consideration be given to each separate aspects of claim of the fear of persecution made by the appellants for the refugee status. The RRT failed to assess the cumulative effects of the separate incidents related with the appellant's claim for the protection visa. This ground in substance involves two quite distinct propositions. In the first sentence it deals with the separate aspects of a claim to fear persecution. As I have already indicated, the Federal Magistrate dealt with that complaint and expressed the conclusion, correctly, in my view, that the Tribunal's factual findings, largely based on the appellant's lack of credibility in relation to what her Honour described as the second element of the definition of refugee, made any consideration of the third and the fourth elements moot. The other proposition in this ground was that the Tribunal failed to assess the cumulative effects of the incidents upon which the appellant relied before it. Her Honour does not seem to have addressed that proposition in terms, but in my view, it follows implicitly from the way she dealt with the first proposition that any consideration of the cumulative effects of the incidents relied upon by the appellant would have been quite beside the point, once her Honour held, as she did, that the appellant's separate claims had failed before the Tribunal simply because they were not believed. I note, however, that the Tribunal included the following passage in its written decision: Based on all of the above and having considered the applicant's claims individually and cumulatively, the Tribunal finds that if the applicant returned to India, now or in the reasonably foreseeable future, there is no real chance that he will face serious harm for any Convention reason. 9 The remaining points raised by the appellant this morning find expression only in the written outline of submissions upon which he relied. The first is that the Tribunal completely misunderstood, and was confused about, the appellant's membership of Shiv Sena. That allegation seems to have been based upon the way in which the Tribunal conducted the hearing at which it questioned the appellant and, in effect, gave the appellant the opportunity to give evidence in support of this claim to be a refugee. According to the appellant in his outline, the Tribunal questioned him many times as to why he joined Shiv Sena, as to how he came into contact with Shiv Sena, and as to how long he was associated with Shiv Sena. He appears to be saying that this course of questioning demonstrated a misunderstanding and confusion in the mind of the Tribunal member. It is clear, however, that complaints of this kind must fail for two reasons at least. First, neither before the Federal Magistrate nor before this court has the appellant made any attempt to place a transcript or record of the proceedings before the Tribunal into evidence. An evidentiary basis for the allegation which he makes against the Tribunal is, therefore, wholly absent. Secondly, propositions about misunderstanding and confusion on the part of a member of an administrative tribunal, such as the Tribunal here, cannot amount to a jurisdictional defect unless they reach the stage of constituting a failure to take into account relevant considerations or a misapprehension of the question required to be determined. Having read the written decision of the Tribunal I am completely unpersuaded that such a point has been reached in the circumstances of the present case. 10 The appellant's next point relates to a passage in the Tribunal's findings and reasons in the following terms: The Tribunal found that the appellant was not a credible witness in presenting his case. The applicant was evasive and often did not respond to the questions posed by the Tribunal. Much of the applicant's evidence was given after prompting by the Tribunal. … The Tribunal found the appellant's description of an attack on him in July 2005 to be highly vague and despite the prompting of the Tribunal the applicant has been unable to describe the attack. 11 The appellant alleges that he was, in effect, denied a fair hearing because of the interpretation of his answers given in the Tribunal and of the Tribunal's questions to him. He puts his allegation in these terms: …the Tribunal did not account that the appellant does not know about the Australian legal system and he does not know the English language. Whatever he understands, it comes through the interpreter's filtered mind and whatever he wanted to say, it goes through interpreter's understanding of issues. The appellant did not understand many questions raised by the Tribunal and it took more time to understand and give proper answer and this is the reason of prompting by the Tribunal member. This point must also fail because of the failure of the appellant to place any transcript or record of the proceedings in the Tribunal before the Magistrate or this court. However, the written record of the Tribunal's decision sets out the course of the questions posed and the answers given during the hearing and, to the extent that they may be relied upon (they being the only relevant material that was before the Magistrate or before this court) they provide no support for the allegation made by the appellant. In relation to the particular incident of which the appellant complains, his evidence about the attack of July in 2005, I would refer, for example, to the following passage in the Tribunal's decision: The Tribunal asked the applicant about the events of July 2005. He said that at the time the Congress people attacked him as he was going to Gendhinagai. The Tribunal asked the applicant to describe the attack. He said that he was injured and was hospitalised for three days. The Tribunal repeated its question. The applicant said that he was going to Gendhinagai with a friend and the Congress people attacked him. One of them was Zamir Khan. The Tribunal asked the applicant if he had known this person. The applicant said that he did not know this person but he lives in town and he had seen him. The Tribunal again asked the applicant to describe the attack. The applicant said that they were going and were attacked. The Tribunal asked the applicant to be more specific. The applicant said that they were going to an office at Sector 7 at Gendhinagai and he attacked. They were on the street. The Tribunal asked the applicant why this person waited for the applicant to travel to Gendhinagai instead of attacking him in Ahmedabad or in Odhav. The applicant said he did not know but they were going for some work and maybe he wanted to disturb the applicant. There were three attackers but the applicant did not know the others. This passage shows that, in some respects at least, the appellant well understood the questions being posed by the Tribunal, but, in relation to the detail of how the attack actually occurred, he was, at least as disclosed by this passage in the reasons, manifestly evasive. One can well understand the reservations as to the appellant's frankness expressed in the reasons of the Tribunal. In my view, there is no substance in the point insofar as it makes a complaint about the integrity of the interpretation process in the hearing before the Tribunal. 12 The next point raised by the appellant is that the course of questioning in which the Tribunal engaged was harassing and intimidating and more in the nature of a police interrogation than in the nature of an impartial body such as the Tribunal. This is another allegation which must fail for want of evidence. As it happens, a similar allegation was made in the appellant's submissions before the Federal Magistrates Court, and her Honour dealt with it in a way which I find, with respect, entirely satisfactory. Her Honour rejected the suggestion that the Tribunal deliberately used the hearing to conduct a quasi-police investigation, or that that was the effect of the manner of questioning adopted by it. Her Honour pointed out that the appellant had not provided a transcript of the Tribunal hearing and that there was, therefore, no evidence before her which would support this line of allegation. Her Honour rejected the suggestion that any repeating of questions was designed to catch out, manipulate, entrap, destabilise or confuse the appellant. Her Honour then dealt with the proper limits of a hearing of the kind conducted by the Tribunal in the present case, in the course of which she pointed out that it could not be expected that the Tribunal would not seek legitimately to probe and to press a person in the position of the appellant, and that repeated questioning, even with some degree of persistence, did not amount to procedural unfairness. Her Honour referred to the authority of this court and of the High Court in relevant respects. She concluded: I am satisfied that there is nothing disclosed on the face of the Tribunal decision record concerning the manner and form of the questions asked of the applicant in this case, from which a fair-minded lay observer or a properly informed lay person might say that the applicant was thereby intimidated or overborne and from which an inference might otherwise have been available that the Tribunal acted unfairly or in bad faith. Nothing which the appellant has put in his submissions in this court even remotely seeks to join issue with the way in which her Honour dealt with these aspects of the appellant's case. I am satisfied that she did so without error. 13 The appellant's next point relates to s 424 of the Act. In an unparticularised allegation, he says in his outline that the Tribunal failed to follow s 424 and thereby made a jurisdictional error. A similar submission was made to the Federal Magistrates Court and her Honour dealt with it carefully and thoroughly, referring, where appropriate, to the case law on the subject. Again, the appellant has made no attempt to engage with her Honour's treatment of this point, and I am not prepared to treat this as the occasion, in effect, for another original hearing of the allegations which he made against the Tribunal in relevant respects. Having read the passages of the reasons of the Federal Magistrate's treatment of the s 424 point, it seems clear to me that her Honour was correct to dispose of it in the way that she did, that is, adversely to the appellant. She concluded: Having properly considered the evidence before it, the Tribunal in this case was thus under no obligation to conduct any further investigation or inquiry, or to invite any person to give additional information, before concluding that the applicant did not have a well-founded fear for a Convention reason. I therefore detect no jurisdictional error on this basis. I agree with her Honour in that conclusion. 14 The appellant's next point appears to relate to the weight which the Tribunal afforded to the evidence which he gave at the hearing. In his outline of submissions, the point is expressed in these terms: The Applicant claims that the Tribunal made a jurisdictional error when it could not afford sufficient weight to the oral evidence at the time of the hearing. Manifestly, this is not a complaint of jurisdictional error. The weight to be attributed to particular evidence is entirely a matter for the Tribunal, and arises within its jurisdiction. That circumstance was clearly recognised by the Federal Magistrate, who referred to the authorities which made it clear that there is no legitimate jurisdictional objection involved in this point. 15 The appellant's next point is that the Federal Magistrate failed to hold that the Tribunal made a jurisdictional error in failing to examine all other sources of available country information and other evidence. Her Honour referred to this objection by observing that there was no obligation on the Tribunal to consult country information, and that it was for the appellant to provide the Tribunal with material which he wished it to consider. Her Honour said that the Tribunal's choice and assessment of country information was a purely factual matter for it, and that the way it proceeded in the present case, including its choice of information of that kind, was not a matter which gave rise to questions of excess or want of jurisdiction. Her Honour referred to the cases in these respects, and I agree with the conclusion which she reached. 16 Finally, depending upon the view one takes of a particular passage in the appellant's outline of submissions, it may be that he would wish to be taken, also, as having made a submission that the Federal Magistrate erred in failing to find that the Tribunal had made a jurisdictional error, by omitting to make a finding on the question whether the appellant had a well founded fear by reason of his membership of Shiv Sena. Probably because of the slightly obscure meaning of the passage in question in the outline upon which he relied before the Federal Magistrate, her Honour did not specifically deal with a proposition expressed in this way. There is, however, no substance in it. The Tribunal did not accept that the appellant had been actively involved in Shiv Sena and its work, that the appellant was a leader in Shiv Sena, that the level of the appellant's involvement in Shiv Sena would have been of such a degree as to bring him to the attention of Congress supporters, and to cause him to become a target for them, that there was a real chance that the appellant would be persecuted due to his political involvement with Shiv Sena, or any other Convention reason, if he returned to India now or in the reasonably foreseeable future, and, in the light of the appellant's apparent lack of interest in the Indian political or social work in Australia, that he was genuinely committed to the work or the ideology of Shiv Sena. It is manifest that, to the extent that the appellant should be taken to have a point articulated in the way I have above, there is no substance in it. 17 For those reasons, I am unpersuaded that the Federal Magistrate erred in the way she disposed of the appellant's application. To the contrary, her treatment and disposition of that application, was, in my respectful view, both thorough and correct. 18 The appeals will be dismissed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.