FEDERAL COURT OF AUSTRALIA SZOEK v Minister for Immigration and Citizenship [2011] FCA 198 Citation: SZOEK v Minister for Immigration and Citizenship [2011] FCA 198 Appeal from: SZOEK v Minister for Immigration & Anor [2010] FMCA 534 Parties: SZOEK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: QUD 318 of 2010 Judge: LOGAN J Date of judgment: 3 March 2011 Catchwords: MIGRATION – appeal from decision of Federal Magistrates Court under the Migration Act 1958 (Cth) – whether decision of Tribunal was manifestly unreasonable so as to result in jurisdictional error Legislation: Migration Act 1958 (Cth) ss 91R, 424, 424B Cases cited: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 followed Date of hearing: 3 March 2011 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 20 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondents: Ms N Kidson Solicitor for the Respondents: Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 318 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOEK Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: LOGAN J DATE OF ORDER: 3 MARCH 2011 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant is to pay the first respondent's costs of and incidental to the appeal to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 318 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOEK Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: LOGAN J DATE: 3 MARCH 2011 PLACE: BRISBANE REASONS FOR JUDGMENT 1 The appellant is a citizen of the Republic of India. He came to Australia in May 2009. On 13 July 2009, he made an application to the Minister for Immigration & Citizenship, the first respondent to the present appeal, for a grant to him under the Migration Act 1958 (Cth) (Migration Act) of that class of visa known as a Protection Visa. A delegate of the Minister decided on 9 October 2009 to refuse that visa application. As was his right, the appellant sought a review on the merits of the Minister's delegate's decision by the Refugee Review Tribunal (the Tribunal). On 4 February 2010, and after affording the appellant an oral hearing, the Tribunal decided to affirm the decision not to grant the appellant a Protection Visa. 2 The appellant then sought judicial review of the Tribunal's decision by the Federal Magistrates Court. On 12 July 2010, for reasons given ex tempore, that day the Federal Magistrates Court dismissed the appellant's judicial review application. It is from that court's decision that the appellant now appeals to this court. 3 The grounds of the appeal are these: 1 The Hon. FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant's claims and ignoring the aspect of persecution and harm in terms of sec 91R of the Act. The Tribunal failed to observe this obligation amounted to a breach of a Statutory Obligation. 2 The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. 3 The Hon. FM failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences [sic]. 4 Before turning to the merits of the grounds of appeal some reference should be made to the basis upon which the appellant claimed a Protection Visa. 5 The appellant's claim was that he was a farmer. It was further that in the area where he farmed he was the only educated farmer. That educational advantage, so he claimed, gave him a leading role in his local farming association. Most of the farmers in the area were very poor and were, so the appellant claimed, exploited by the landowners. Those landowners were high caste Hindus and were supported, so he claimed, by the BJP Party. The appellant's claim was that to support the poor farmers he had become involved in an organisation called the Indian National Lok Dal (INLD). The INLD, so the appellant claimed, was the only party that had good policies for the poor farmers. His claim was that the leading role that he played as an INLD member had led him to become the "main target" of the BJP and high class Hindus. In enlarging upon this in his claim he made reference to attempts to kill him on a number of occasions as well as threats of violence made against him. He further stated that persons, apparently either BJP or high class Hindus or both, had come to his home and ransacked it in front of other villagers. In so doing they had warned him not to support the INLD and poor farmers but rather to join with them. This offer, he said, he had refused. In other words the BJP or high class Hindus, or both if there be any difference, had wanted to kill him. It was because of this threat that the appellant left his family and came to Australia. 6 I should record that the appellant is a married man with a daughter. They are still resident in India. 7 It was against this background that the appellant made his Protection Visa claim. He claimed that were he to return to India he would be in real danger of being killed by BJP members and high class Hindus. 8 The Tribunal's reasons disclose that this claim was given thorough and detailed consideration. 9 The appellant submitted this morning that there were serious consequences for him were he to return to India. Weighing up the basis of the claim which I have described, including the claim as to serious consequences was particularly a subject for the Tribunal. In that regard the Tribunal was faced with an application which relied very much on acceptance of the appellant's oral and written account of his experiences in India. There was no supporting documentary evidence. 10 It is plain from the Tribunal's reasons that the absence of that supporting documentary evidence was not fatal to the success of the appellant's review application: see, in particular, paras 116, 117 and 121 of the Tribunal's reasons. Instead, the fate of the appellant's review application turned upon an assessment which the Tribunal member made of the credibility of the appellant's written and oral account of his experiences in India. The Tribunal found, for reasons which are set out at length from para 114 and following, a number of inconsistencies in the appellant's accounts. In the concluding paragraphs of the Tribunal's reasons one finds at para 136 the following statement: The applicant has referred to himself as an educated farmer. However, even if the Tribunal were to accept that "educated farmers" or "farmers" in India constitute a particular social group, it does not accept that he has ever in any way been targeted for reason of being a farmer or an educated farmer. While the applicant has referred to high class or high caste Hindus, the Tribunal does not accept that he has ever been targeted or harmed by such people. Looking to the reasonably foreseeable future it finds to be remote the chance that he would be threatened, physically harmed, killed or otherwise persecuted by high class / high caste Hindus, members of others associated with the BJP, landowners or anyone else in India. It finds that there is no real chance that he would be persecuted for reason of an actual or imputed political opinion, religion, membership of any caste-based particular social group or membership of a particular social group constituted by educated farmers or for any other Convention reason. 11 The grounds of appeal are narrower in focus than those grounds of review which were set out in the judicial review application. In particular, no issue arises on the appeal as it did before the Federal Magistrates Court in relation to either s 424 or s 424B of the Migration Act. 12 I turn to consider each of the grounds of appeal. 13 As to ground 1, it is apparent from the reasons of the learned Federal Magistrate that his Honour well appreciated that it was not his role to make findings on the factual merits of the claim for a Protection Visa: see para 18 of his Honour's reasons. It is possible to read ground 1 as an allegation of a failure to appreciate that the Tribunal's reasons were manifestly unreasonable. Even so regarding that ground, the difficulty is that the Tribunal's reasons are not flawed in that way. 14 In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] Crennan and Bell JJ, in the course of a wide ranging survey of the development and scope of illogicality and irrationality as a basis of jurisdictional error, stated at para 130: In the context of the Tribunal's decision here "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision-maker could arrive on the same evidence. 15 Here, the Tribunal's findings included the making of a credibility finding. Such a finding is par excellence, one for the Tribunal, uniquely one, for the Tribunal. The reasons why the Tribunal made that finding, though the appellant may well disagree with them, are not illogical or irrational. That, in essence, was the response which the Minister made to this ground of appeal. It is a telling response. 16 Insofar as ground 1 also makes reference to s 91R of the Act it seems, read in context, that it is a reference to s 91R(1) and s 91R(2) rather than s 91R(3). So understood, there is no additional comfort for the appellant in ground 1. That is because, particularly bearing in mind that the reasons of the Tribunal are not to be read narrowly and with an eye for error, the discussion which appears on and from para 9 in the Tribunal's reasons under the heading, "Definition of Refugee", is unremarkable and expressly takes account of s 91R and s 91R(1) and s 91R(2). 17 Ground 2 of the grounds of appeal is stated at such a level of generality that it may aptly be described as not a meaningful ground of appeal. Even if that be an overly harsh criticism of the ground, and it is to be regarded as an allegation that the learned Federal Magistrate ought to have concluded that the Tribunal had not discharged its statutory function, there is no substance in it. The Tribunal's reasons disclose that the member constituting the Tribunal engaged fully with the statutory review task consigned to the Tribunal by the Migration Act. 18 Ground 3, again, looks to be a complaint as to reasonableness and perhaps also a complaint that the Tribunal had not considered the visa claim as made by the appellant. I have already remarked that the Tribunal's reasons were neither illogical nor irrational and hence not unreasonable in the way explained in SZMDS. 19 As to the allegation that the gravity of the appellant's circumstances and consequences was not taken into account, the Tribunal's reasons disclose that the gravity of the claim was considered. It is just that the Tribunal did not accept that there was a claim of that gravity because it did not believe the appellant's account. 20 For these reasons, then, the appeal must be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 8 March 2011