SZLMZ v Minister for Immigration and Citizenship [2008] FCA 1203

FEDERAL COURT OF AUSTRALIA

SZLMZ v Minister for Immigration and Citizenship [2008] FCA 1203

Migration Act 1958 (Cth) s 425

Minister for Immigration v Eshetu (1999) 197 CLR 611 cited Buck v Bavone (1976) 135 CLR 110 cited SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 cited SZLMZ and SZLNA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD644 of 2008

LOGAN J

6 AUGUST 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD644 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLMZ

First Appellant

SZLNA

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LOGAN J

DATE OF ORDER: 6 AUGUST 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The Appellants are to pay the First Respondent's costs of and incidental to the appeal which are fixed in the amount of $2300. 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 NSD644 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLMZ

First Appellant

SZLNA

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LOGAN J

DATE: 6 AUGUST 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Appellants are citizens of India. The Appellants came to Australia last year and lodged with the Department of Immigration and Multicultural Affairs on 1 May 2007 an application for a type of visa under the Migration Act 1958 (Cth) known as a protection (class XA) visa. That application was considered by a delegate of the Minister who is the First Respondent in the present appeal. The delegate on 15 May 2007 decided to refuse to grant to the Appellants' protection visas. 2 As was their right, on 7 June 2007, the Appellants applied to the Refugee Review Tribunal ("Tribunal") for the review by that Tribunal of the Minister's delegate's decision not to grant them protection visas. On 6 September 2007, the Tribunal decided to affirm the decision made by the Minister's delegate not to grant to the Appellants a protection visa. That decision was communicated to the Appellants under cover of a letter from the Tribunal to them dated 2 October 2007. That letter enclosed not just the formal decision of the Tribunal but also the reasons given in writing by the Tribunal for the decision. 3 The Appellants then sought the judicial review of the Tribunal's decision by the Federal Magistrates Court. On 24 April 2008 for reasons which were then published that Court dismissed their judicial review application. In turn the Appellants have appealed to this Court. There are three grounds identified in the notice of appeal, which are as follows: 1. His Honour Federal Magistrate failed to hold that Refugee Review Tribunal made jurisdictional error when adopted harsh approach to well founded fear. The Tribunal misapplied the express and implied meaning of term "Well-founded fear and Refugee from the UN Convention in relation to applicant's fear of persecution. The Tribunal wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes prosecution as a member of a particular social group and due to his political opinion persecution. The Appellant's claim was based on his religious belief. 2. Hon. Federal Magistrate failed to hold that the Tribunal has filed to carryout the real chance test as required by the law but has resorted to balance of probabilities and other types of tests. 3. The Appellant claims that there was certain information used by the Tribunal to make decision. The Appellant was not provided opportunity to comment. The Tribunal made a jurisdictional error when it did not disclose the information in accordance with s 424A(1) of the Migration Act. [sic] 4 The male Appellant appeared today to argue the appeal on his own behalf and also, as I understood it, on behalf of his wife. He had earlier lodged with the Court in accordance with directions made, a written outline of submissions, again on behalf of himself and his wife. I have considered the outline thus lodged as well as the oral submissions made to me today on behalf of the Appellant. Those submissions were noteworthy for their candour. 5 Another feature of the oral submissions was that they did extend beyond what were strictly the written grounds of challenge as identified in the notice of appeal. A similar expansion of the basis of challenge appears to have occurred before the Federal Magistrate, in the sense that there were grounds of review advanced orally which did not feature in the application to that Court. It seems that before the Federal Magistrates Court the Minister adopted what was, in the circumstances, the humane course of dealing with informally raised grounds of review, as well as those formally raised in responding to the judicial review application. A similar course has been adopted before me on behalf of the Minister. For that reason I shall make reference to other bases of challenge which seemed to be of concern to the Appellants, apart from the formal grounds of appeal. 6 The background to the claim advanced for protection visas arises from the particular circumstances in which the male Appellant claimed to have found himself as a result of a defalcation by the six persons employed in a jewellery business which he conducted. In short, the claim which he made was that the employees had stolen the stock of that jewellery business valued at some 3.3 million rupees. That stock, so the protection visa claim related, consisted of jewellery paid for in advance by his customers, as well as jewellery which he had purchased with his own capital. The result, so the claim related, was an inability on the part of the male Appellant to supply the jewellery for which prepayment had been made or to repay his customers. Certain of those customers, so the claim related, were men of the Muslim faith who pressured him to repay what he owed them. The Appellant is a Hindu. 7 The Appellant also made reference to his having been arrested for failing to repay his debts, that he thought of suicide after being forced from his home and that his wife had been threatened with kidnap. His evidence before the Tribunal was that he was fearful of returning to India. He claimed that his and his wife's lives were at risk. The female Appellant's claim for a protection visa was not advanced on a separate factual foundation but rather was inextricably bound up with the claims advanced on behalf of the male Appellant. 8 It is evident from the Tribunal's reasons that not all of the evidence given by the Appellant in the oral hearing that the Tribunal extended to him, was accepted by the Tribunal. The Tribunal's reasons disclose a quite rational and logical basis for the findings of fact that the Tribunal came to make. Those findings culminated in the following conclusion of fact which appears in the Tribunal's reasons (appeal book page 86): The Tribunal is not satisfied that the harm suffered by the applicant in India was or his fears of future harm are for the reason of his religion, imputed political opinion, membership of the particular social group of his father's family or any other convention reason. The applicant repeatedly stated at the hearing that his Muslim creditors wanted to recover their money at any cost and the Tribunal finds that the essential and significant reason behind the applicant's experiences at the hands of his Muslim creditors and his fears in relation to them is his debt and the fact that his creditors wanted their money back.