SZAZW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 91 (10 February 2005)

Last Updated: 18 February 2005

FEDERAL COURT OF AUSTRALIA

SZAZW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 91

SZAZW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1697 of 2004

ALLSOP J
10 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1697 of 2004

BETWEEN:	SZAZW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	10 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s 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 1697 of 2004

BETWEEN:	SZAZW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	10 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from orders made by a Federal Magistrate on 19 October 2004 which orders dismissed an application (with costs) that had been made by the appellant under section 39B of the Judiciary Act 1903 (Cth) for review of a decision by the Refugee Review Tribunal which had affirmed a decision of the delegate of the Minister not to grant a protection visa.

2 The Chief Justice has made a determination that one Judge of the Court hear the appeal.

3 Before coming to the detail of the case at hand it is appropriate that, for the benefit of the appellant, I briefly outline as clearly as I am able the role and function of this Court sitting on appeal. The appellant is a litigant in person, not assisted on the appeal by legal representation.

4 The decision as to whether to accept the material put forward by a person in the position of the appellant as a refugee, that is as someone to whom Australia has obligations under the relevant Refugee Convention, is one primarily reposing in the Executive, that is, the non-judicial branch of the Government. First, a delegate of the Minister and on review the Refugee Review Tribunal make administrative decisions as to whether to accept or reject material put forward by the person seeking the relevant visa. In statutory provisions in the Judiciary Act and Migration Act 1958 (Cth) in particular, a judicial review mechanism exists to correct certain types of error if made by the Tribunal.

5 In this respect an application was made to the Federal Magistrates Court to which there is an appeal to the Federal Court. The application to the Federal Magistrates Court is in terms of section 39B of the Judiciary Act. Under that provision certain types of statutory writs are able to issue setting aside the Tribunal's decision. However, a precondition for the issue of those writs setting aside the Tribunal's decision is that certain fundamental errors be demonstrated in the approach of the Tribunal. These are generally referred to as jurisdictional errors.

6 This is not the place to attempt to summarise the body of law concerning jurisdictional error in the making of administrative decisions. It is sufficient to explain to the appellant in these reasons that broadly what must be shown is a failure by the Tribunal to attend to the task which has been given to it by Parliament. It might conceivably do this by a number of errors. It might misunderstand what it is supposed to do. It might misunderstand the questions it has to ask itself. It might fail to give the person before it procedural fairness. It might so deal with the factual questions as to display sufficient irrationality to enable one to conclude that it did not understand its task. However, what is not a ground of review by this Court is a mere disagreement, however strongly held, with the factual conclusions drawn by the Tribunal.

7 The important thing to understand for the appellant, is that it is not this Court's job merely to re-find the facts. Nor was that the job of the Federal Magistrates Court. The Federal Magistrate was charged with ascertaining whether there had been a failure by the Tribunal to approach the matter in a lawful way. It was not part of the Federal Magistrate’s duty to review the evidence to find out what decision on the visa application the Court would make. The Federal Magistrate’s was, as I have said, to ascertain on the material before him, whether the Tribunal had approached the matter lawfully according to the relevant statutory provisions and the common law. That was the task of the Federal Magistrates Court. The task of this Court on appeal is to ascertain whether the Federal Magistrate fell into error, that is, whether the Federal Magistrate made a mistake in the approach he took. Just as it was not the task of the Federal Magistrate to come to a decision on the facts as to whether a visa should be granted, it is not the statutory task of this Court to do that. With that background I turn to the appellant's appeal.

8 The learned Federal Magistrate set out in paragraphs 4 and 5 the terms of the Tribunal's considerations of the claims and the terms of the Tribunal's reasoning in relation to those claims.

4. The claims made by the present applicant to satisfy the definition of refugee" in the Refugees Convention were set out in the Tribunal's reasons as follows:

The applicant is a male Muslim Tamil aged 36 with a wife and three children living in Tamil Nadu, India. He received a secondary education up to year 11 when he discontinued. For two years after leaving school he remained unemployed. The applicant then began selling imported products brought into India by his friends. He also joined a Moslem social welfare organisation called the "Minority Ruling Organisation" (MRO) he was not paid for his work and became president in 1996. The applicant said that he had never had problems with fundamentalist Hindus between the time he left school and the incident in April 2001. The MRO was principally concerned with assisting poor Moslems and other low caste communities. The applicant claimed that because of its name, conservative elements in the majority Tamil Hindu community thought the MRO had political ambitions and through mass conversion of low caste Tamils intended to increase Moslem influence in Tamil Nadu. He claimed that this was not the MRO´s intention and at the time he was not aware of the gathering concern among Hindus.

In April 2001 the applicant addressed a gathering at Pattukkottai a predominantly Moslem community south of Madras in Tangor district. He claimed that he offered assistance of the MRO. Later on his journey back to his village by car, he was stopped by what looked like a Police jeep and 4-5 persons dressed in what appeared to be police uniforms. They told him to get out of the car and the driver was sent away. He was interrogated about what he had said to the meeting and accused of converting poor Tamils to Islam. He claimed the police and others with them bashed him unconscious. Later he was picked up by a bus driver and taken home. He collected his wife and children and moved to a friend’s home in Madras City where he remained without any further problems with the police until leaving for Australia on 30 January 2002.

The applicant claimed that between April 2001 and his departure, he lived in fear of being discovered by extremist Hindus of the RSS and VHP. He thought that the police may have a photo of him as he believed that these organisations had photos of all leading Moslems and they were closely aligned to members of the Police and the Government of Tamil Nadu. For this reason he cannot expect any assistance or protection from the Police or the Government.

5. The Tribunal's reasoning in relation to those claims was as follows:

The Tribunal was unable through country information sources to find any reference to the Minority Ruling Organisation (MRO) although there is evidence of Moslem societies involved in similar charity work and conversion of low case Hindus in Tamil Nadu. These activities have in the past caused friction with conservative Hindu religions and political organisations such as the RSS and VHP.

The Tribunal was surprised at the applicant’s very limited knowledge about the organisation of which he claimed to have been a member for some time and was its immediate past President. His sudden departure from that post, his inability to provide the Tribunal with the name of his successor, and his claim that his brothers destroyed all the MRO´s records, leads the Tribunal to conclude that the applicant’s evidence cannot be accepted.

In addition, when asked by the Tribunal what was his understanding of the number of Moslems in Tamil Nadu he replied between 35,000 and 40,000. According to the RRT’s States of India Package, Tamil Nadu had a total population of approximately 62,110,839 of which Moslems make up over 3 million or 5.5%. While the Tribunal would not expect such knowledge of an ordinary Indian Moslem, it is not unreasonable to expect that the President of an allegedly Indian Moslem organisation involved in low caste conversions in Tamil Nadu would be aware of the approximate size of the Moslem population in his state of operation.

The Tribunal is not satisfied on the basis of the evidence, that the applicant was the victim of an attack in April 2001, nor that the MRO actually exists. In view of his alleged long association with the organisation, the Tribunal finds it implausible that the applicant would not have known the name of his successor. If the MRO was a bona-fide organisation with a functioning committee structure, the Tribunal would have expected that its records would be held by the secretary or other members of the Committee, not by the brothers of the applicant who were allegedly, angry at his involvement, and according to the applicant’s evidence, able to destroy them at will.

The Tribunal does not accept the applicant’s claims that following the alleged attack by the police in April 2001 he took his wife and children to live in a friend’s home in Madras until he left for Australia on 30 January 2002, and that for this significant period of time he was supported financially by his friend, nor that he "lived in fear" during this period and was in hiding. Whether he would have been of interest to the extremist Hindus or the police is highly doubtful, as on his own evidence, he had resigned from the MRO and was taking no further part in social welfare or conversion activities.

The Tribunal is unable to be satisfied that the applicant faces a real change of persecution should he return to India now or in the foreseeable future. Nor is the Tribunal satisfied that the applicant has a well-founded fear of persecution for a Convention reason.

9 The essence of the rejection of the appellant's claims was the rejection of the reliability and credibility of the claims for the reasons set out by the Tribunal. It is not for me to conclude whether that is a correct or incorrect body of conclusions for the reasons that I hope I have earlier explained. What must be demonstrated is that in the way the Tribunal approached the matter it failed in its statutory obligation to deal with the matter lawfully.

10 The application before the learned Federal Magistrate was in an amended form which asserted a jurisdictional error on the part of the Refugee Review Tribunal in the following terms.

1.

JURISDICTIONAL ERROR ON THE PART OF THE REFUGEE REVIEW TRIBUNAL

A)

The Tribunal rejected that there was a minority Muslim organization called the MRO or Minority ruling organization, simply because of the fact the appellant could not give an accurate number of Muslims in Tamilnadu. Just because he could not render an accurate profile of the Muslim population in Tamilnadu, does not negate the fact the MRO existed and carried on Social activities among the Muslims, in the state.

B) The Tribunal rejects whether an organization like the MRO existed because the RRT’s States of India package does not contain any reference to it. This is not conclusive evidence that Muslim organization exists, even though in comparison, it is not a very large organization. A query to the Indian Mission in Australia or the Australian Mission in India would have corroborated that the MRO was a vibrant Muslim organization in Tamilnadu carrying on social and educational work in Chennai.

B)

Further it was adversely held against him that he did not know the name of the present president of MRO. The appellant had severed all links with the MRO, long ago and as such, presently living in Sydney, thousands of miles away he cannot be expected to know the office bearers of the organisation he had quit. Further the records of the MRO, in the custody of the appellant were destroyed by a bother [sic] of his, in a fit of anger that the appellant had brought trouble to the family, by earning the hostility and enmity of the powerful Hindu fundamentalists.

C)

The Tribunal has rejected the appellant’s claim that he was waylaid and assaulted by a coterie of Hidu [sic] extremists in April 2001 and had to relocate with his wife and children to Chennai, where he was forced to live, in hiding in the houses of friends. It is questionable how the Tribunal came to it’s decision, given the agonony [sic] of his living in hiding with his family which a had a child which was disabled.

D)	The Tribunal has not taken into cognizance that the appellant was compelled to flee persecution in India at the ands of the Hindu Fundamentalists and seek shelter in Australia.

In the light og [sic] the foregoing the appellant requests the honourable court, to the Tribunal, freshly constituted for rehearing.

[Emboldening and capitalisation in original]

11 The Federal Magistrate in respect of the above paragraphs concluded that each was a matter attempting to dispute the factual basis for the Tribunal's decision and the Federal Magistrate said that he was unable to find in any of them a ground alleging legal error by the Tribunal. With respect to the Federal Magistrate, the dichotomy that his Honour made between factual matters and legal matters is not the relevant distinction to be made, though it is relevant to the relevant distinction to be made. As was said by a number of members of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 the fact that an error may be factual does not mean it cannot be jurisdictional error. Equally, the fact that some legal error was made does not necessarily mean an error was jurisdictional error. However, looking at the way the matter was asserted in the application, and bearing in mind that the appellant did not add anything substantively before the Federal Magistrate in support of the application, it does not appear to me that looking at the amended application that it can be said that the factual matters raised by the amended application amount to any assertion of what could be said to be a jurisdictional error, notwithstanding the heading of jurisdictional error in the amended application. Thus, although the precise terms of the Federal Magistrate's reasons throw up a distinction that is not the precisely relevant distinction, I do not see any operative error in that paragraph.

12 The Federal Magistrate concluded that he was not able to identify any legal error amounting to jurisdictional error in the approach to the Tribunal.

13 The appellant's notice of appeal identifies seven grounds numbered 2 to 8. They were in the following terms:

GROUNDS

2.	The Single judge of the Federal Magistrates Court in his Honours Judgement delivered on the 29 October 2004 failed to find error of law, Jurisdictional error, Procedural fairness and relief under Section 39B of the Judiciary Act 1903.

3.

The grounds and relief is very much similar with a recent High Court Judgement – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). Catchwords: Immigration – Refugee – Protection visa – Decision by Minister to refuse application for visa – Review of decision by Refugee Review Tribunal – Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Register of Tribunal for purpose of review – Nature and extent of obligation – Migration act 1958 (Cth), ss 148(3), 424(1).

4.	The Honourable trial judge erred in considering the real state of affairs of me, I feared harm. And also the resent ruling government fail to protect politicians life, which is a worldwide concern today. Honorable Trial judge did not take it into consideration.

5.	S474 of the Migration Act is ineffective as per the recent two decision of the High Court of Australia, Honorable trial judge did not consider this in favour of me.

6.	I will face persecution if I return to my country of origin, as there are significant level of violation of human rights, this was not considered by honourable judge.

7.	Recent High Court judgement [sic]: Plaintiff S 157/2002 v Commonwealth of Australia [2003] HCA 1 (4 February 2003).

8.	Recent Federal Court of Australia judgement [sic]: SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [203] FCA 74 (14 February 2003).

14 Ground 2 is unspecified and no material has been put forward to substantiate it.

15 The procedural fairness aspect of ground 2 is elaborated in ground 3. No evidence was led before the Federal Magistrates Court as to the matters which were otherwise agreed as agreed facts in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 and no foundation was laid for a natural justice or procedural fairness claim before the Federal Magistrate.

16 Ground 4 appears to make the assumption that it was the Federal Magistrate's job to determine the real state of affairs in respect of the claim for the visa. As I have attempted to explain to the appellant, the underlying consideration of whether the claim should be accepted and a visa granted is not a matter for either the Federal Magistrates Court or this Court.

17 Grounds 5 and 7 raise the question as to the legitimacy of section 474 of the Migration Act and the High Court judgment in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 CLR 24. The learned Federal Magistrate clearly but implicitly approached the matter on the basis of the relevance of finding jurisdictional error. That was an approach entirely in accordance with Plaintiff S157 and paragraphs 5 and 7 reflect a body of legal debate settled two years ago by the High Court in Plaintiff S157 and since uniform and followed by this Court and the Federal Magistrates Court. I will say something more about paragraphs 5 and 7, and indeed, paragraph 3 in due course.

18 Ground 6 was an assertion of what will happen upon return to the appellant's country of origin. As I hope now is clear from the explanation I gave earlier, the accuracy of the finding of the Tribunal and what, in fact, will or will not happen to the appellant upon his return to India, are of themselves not matters for this Court. This Court, as I have said, is charged with the responsibility of attempting to ensure that the Executive or administrators who make these decisions act within lawful boundaries. Thus ground 6 can only be viewed as an attempt to agitate or deal with the underlying factual matters, which are the province of the Tribunal.

19 Ground 8 refers to a decision, of this Court, which does not touch the matter.

20 I have considered the reasons of the Tribunal, the amended application, the reasons of the learned Federal Magistrate, and primarily by working back from an analysis of the Tribunal's decision, I am unable to identify any jurisdictional error.

21 The appellant put brief submissions to me this morning that he told the Tribunal that he had wounds on his body which supported his story, and he could show them to the Tribunal. He said that no one had taken any notice of what he had said to the Tribunal.

22 The Tribunal dealt with the factual material in the way set out by the learned Federal Magistrate and there was no material before the Federal Magistrate which would have supported any conclusion that the Tribunal had failed to attend to all matters before it and I do not see any error in the learned Federal Magistrate's dismissal of the application.

23 Before concluding I wish to say something as to the notice of appeal. Before I say those matters I wish to make three things clear. First, that these additional comments are for the benefit of the appellant. Secondly, they are in no way any criticism of the appellant personally. Thirdly, they do not reflect any matter which has affected my decision at all, but in the interests of the appellant, I wish him to understand these matters.

24 Sitting in this Court many migration matters come before it and many migration matters come before me. May I say that the terms of the notice of appeal are very familiar to me in that they appear in these identical terms in the notices of appeal of many appellants in this Court. They are not grounds of appeal which helpfully analyse the particular appellant's position and in particular in relation to the case of Muin and Lie in ground 2, section 474 in ground 5, and the judgments referred to in grounds 7 and 8.

25 The grounds give no real assistance to the Court as to what relevantly is to be argued. It may be, and I do not propose to inquire, that this particular form of appeal is handed on from appellant to appellant in an entirely innocent fashion. The appellant is an unrepresented person doing the best he can to advance, legitimately, his own position. But if it were to be the case that anyone has taken money from the appellant for the preparation of the notice of appeal, I for one, until I understood the full circumstances of that transaction, would be most concerned that the appellant may have been taken advantage of. As I said, these last comments are not a personal criticism in the slightest of the appellant. My views as to the form of the notice of appeal have not affected in the slightest my consideration of the appellant's particular case, and I make these comments solely for the benefit of the appellant.

26 For the above reasons, I see no basis to conclude that the Federal Magistrate disclosed any error of an operative kind and in those circumstances I see no alternative but to dismiss the appeal. I see no basis for there to be other than an order that the appellant pay the costs of the respondent on the appeal.

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: 16 February 2005

The appellant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	A J McInerney
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	10 February 2005
Date of Judgment:	10 February 2005