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Federal Court of Australia |
Last Updated: 2 March 2007
FEDERAL COURT OF AUSTRALIA
SZGIO v Minister for Immigration and Citizenship [2007] FCA 160
SZGIO
v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW
TRIBUNAL
NSD 2266 OF 2006
KENNY J
1 MARCH
2007
MELBOURNE (HEARD IN SYDNEY)
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AND:
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THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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SZGIO
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
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JUDGE:
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KENNY J
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DATE:
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1 MARCH 2007
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PLACE:
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MELBOURNE (HEARD IN SYDNEY)
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REASONS FOR JUDGMENT
1 On 10 December 2004, the appellant lodged an application for a protection visa with the first respondent’s Department. On 14 December 2004, a delegate of the first respondent refused to grant a protection visa to the appellant. On 7 January 2004, the appellant applied to the Refugee Review Tribunal for review of the delegate’s decision. The appellant claimed to have left Fiji because he has been the victim of racial abuse. The Tribunal found that the appellant was a citizen of Fiji and that he arrived in Australia on a visitor’s visa in November 2004.
2 On 4 March 2005, the appellant and his sister (who was also an applicant before the Tribunal) appeared at a Tribunal hearing and gave evidence. The appellant’s mother also gave evidence. On 17 March 2005, the appellant and his sister filed further material, including letters from one Taufiq Ali and Fauxmin Alia, and newspaper clippings. On 13 April 2005, the Tribunal sent a letter to the appellant and his sister notifying them of the Tribunal’s decision to affirm the decision of the delegate because, based on the evidence, it was unable to be satisfied that he had a well-founded fear of persecution for a Convention reason.
3 On 19 May 2005, the appellant and his sister filed an application in the Federal Magistrates Court seeking judicial review of the decision of the Tribunal. The appellant’s sister subsequently filed a notice of withdrawal from the proceedings. On 30 October 2006, the Federal Magistrate heard the application and delivered judgment on the same day dismissing the application. The appellant appeals from this decision.
TRIBUNAL DECISION
4 The appellant claimed to fear persecution in Fiji on account of his Indian ethnicity. In his protection visa application, he claimed that: (1) he was living on the fringe of a native Fijian village; (2) the native Fijian landlords (the Mataqali) decided not to renew the lease over the property occupied by the appellant and his family; (3) the Matalqali evicted him and his family from the house, and his sister was kicked and dragged out of the house; (4) when he confronted the Matalqali, they bashed him and said that they would kill him if he tried to re-occupy the premises; and (5) he feared for his safety and reported the matter to the police, who said they could not act on his complaint because it was a civil matter. The appellant claimed that he would have no home to return to and that he feared for his personal safety if he returned to Fiji.
5 The Tribunal accepted most of the claims made by the appellant concerning his family’s eviction. That is, the Tribunal accepted that the appellant and his sister grew up in a house built by their father in a squatter settlement for which they paid the local native Fijians a monthly fee, and that there was no formal or written lease. It accepted that members of the Mataqali put pressure on the appellant for more money and that, when the appellant asked for more time to arrange this, they hit him and demanded that he and his sister take their possessions and leave. The Tribunal was not satisfied, however, that the appellant and his family were evicted because of their race or for another Convention related reason, but rather because they did not pay to the landlords the money that was demanded. The Tribunal considered that, in these circumstances, the failure of the police to assist the appellant and his family did not amount to a breakdown in effective state protection. The Tribunal did not accept the appellant’s claims that there has been or was likely to be a significant upsurge in ethnic conflict in Fiji in the foreseeable future. The Tribunal was satisfied that there was effective state protection available to the appellant and his sister if they returned there in the reasonably foreseeable future. The Tribunal was "not able to satisfy itself that the essential and significant reason for any difficulties...they may have in finding employment, undertaking further education, or of finding accommodation if they returned to Fiji now or in the reasonably foreseeable future would be Convention related", and did not accept these claims. The Tribunal was not satisfied that there was a real chance that the appellant would be subjected to serious harm amounting to persecution for a Convention reason if he were to return to Fiji.
THE FEDERAL MAGISTRATE’S DECISION
6 The Federal Magistrate found that, despite some elements of obscurity in the Tribunal’s decision, it clearly found that there was a non-Convention reason for the appellant and his family losing their home, namely, that they could not pay the rent demanded by the landlords. His Honour observed that the Tribunal also found that, apart from that incident, the appellant did not encounter further difficulties for a Convention reason. His Honour noted too that the Tribunal made a finding about the appellant’s claim that racial tension "is everywhere in Fiji", to the effect that it was satisfied that there was no real chance that the appellant and his sister would be subjected to serious harm amounting to persecution for a Convention reason on this basis. His Honour also referred to the Tribunal’s consideration of claims concerning accommodation, education and employment. His Honour found that he was unable to identify any jurisdictional error in the Tribunal’s decision. He was unable to identify any substance in the allegations of failure to accord natural justice to the appellant. The Federal Magistrate found that, contrary to the appellant’s contention, the Tribunal considered the material received from the appellant. His Honour did not accept that the Tribunal made any error in considering the country information concerning Fiji. Further, his Honour was unable to identify any breach of procedural fairness or of s 424A of the Migration Act 1958 (Cth).
APPEAL TO THIS COURT
7 The appellant appeals to this Court on the following grounds:
"1. The Honourable Federal Magistrates Court erred in interpreting the construction of s424A(3)(a) of the Migration Act 1958 (‘the Act’).
2 His Honour failed to determine that the purpose of s424A was not served at the event a consideration on s424A(3)(a) was given. [sic]
3. The Honourable Court also erred in law determining that the Refugee Review Tribunal (‘the Tribunal’) was [not] in breach of procedural fairness.
4. His Honour failed to determine that the Tribunal made a finding contrary to the evidence before it.
5. His Honour erred in determining that the Tribunal [did not make] the decision in bad faith.
6. His Honour failed to understand that in absence of proper question asked by the Tribunal, the applicant was not in a position to provide any information to challenge the Tribunal’s conclusion that the applicant did not have any knowledge about Awami League and its structure and hence was not a credible witness.
7. His Honour failed to deal with the construction of s 422B as per claimed by the applicant.
8. Additional details will be provided later."
8 The first respondent filed written submissions prior to the hearing, which counsel for the first respondent addressed at the hearing. The appellant appeared at the hearing of the appeal on 21 February 2007, but did not file written submissions. Through an interpreter, he referred to his unrepresented status and to his lack of knowledge of the law. He stated that he would like a further opportunity to put his case to the Tribunal. At the conclusion of the hearing, he asked for an opportunity to file further written submissions on the basis that he had been given advice about his appeal but his adviser was absent from the hearing. The first respondent did not oppose allowing the appellant a period of five days in which to file further written submissions. I made orders accordingly. I emphasised, however, that, if the appellant did not file any submissions by 4.00pm on 28 February 2007, the matter would be listed for judgment the next day, 1 March 2007. After the hearing, my associate also sent a letter dated 21 February 2007, by registered post, reiterating this advice.
9 Nothing was received from the appellant until shortly before 8.00am today, 1 March 2007, when the appellant apparently faxed a letter dated 27 February 2007 to my chambers. This letter relevantly read:
I wish to inform you that I have decided to withdraw my appeal applications due to unforeseen circumstances.
I regret any inconvenience that my decision may cause and sincerely look forward to your assistance in this matter.
The letter mentioned a telephone number, which my associate has tried unsuccessfully to call a number of times today. A copy of the letter from my associate to the appellant dated 21 February 2007 accompanied the appellant’s fax.
10 Where there has been a hearing but judgment is not yet pronounced, an
appellant may file and serve a notice of discontinuance
with the leave of the
Court: see O 52 r 19(1)(b) of the Federal Court Rules. The appellant has
not sought any such leave. Accordingly, the appeal is still on foot; and, for
the reasons that follow, should
be dismissed.
CONSIDERATION
11 Whilst the Tribunal’s decision is liable to be set aside for jurisdictional error (see, for example, Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ), no such error is shown in this case.
12 Grounds 1 and 2 of the notice of appeal concerns s 424A(3)(a) of the Act. The gist of the appellant’s complaint appears to be that the Tribunal acted in breach of s 424A(1) by not observing the requirements of that provision with respect to country information. At the hearing on 21 February 2007, the appellant agreed that this was what was intended by this ground. There is ample authority, however, that country information falls within the exception stated in s 424A(3)(a) and is therefore not the subject of the obligation in s 424A(1): see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at 586 per Beaumont J and at 599-600 per Merkel and Hely JJ. These grounds do not disclose error in the Federal Magistrate’s judgment.
13 The appellant has given no particulars of ground 3 of the notice of appeal. The Tribunal gave the appellant an invitation to appear pursuant to s 425 of the Act; gave him an opportunity to present evidence; and permitted him to file written material containing evidence and arguments both before and after the hearing. The appellant did not point to any failure on the Tribunal’s part to comply with its procedural obligations under Pt 7, Div 4 of the Act. No relevant error can be attributed to the Federal Magistrate and this ground of appeal therefore fails.
14 The appellant has also given no particulars of ground 4 of the notice of appeal. In any event, the finding of the facts is essentially a matter for the Tribunal. The Tribunal evidently considered the evidence and other material presented by the appellant and his sister, as well as the country information it acquired independently of them. It made its findings of fact on the basis of that evidence and material. Absent jurisdictional error, the assessment of the cogency and weight of the evidence before it is a matter for the Tribunal. It was plainly open to the Tribunal to assess the appellant’s claims against the independent country information. Again no relevant error can be attributed to the Federal Magistrate and this ground of appeal also fails.
15 Ground 5, which apparently asserts bad faith on the Tribunal’s part, is also unsubstantiated. There is nothing on the face of the Tribunal’s decision to indicate that it did not discharge its responsibilities in other than an appropriate way. An allegation that a decision was made in bad faith must be clearly alleged and proved: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at 756 per Tamberlin, Mansfield and Jacobson JJ. The appellant has not adduced any evidence that might support this allegation. Further, the allegation does not find support in the Tribunal’s reasons or in its conduct of the matter. No relevant error can be attributed to the Federal Magistrate and this ground of appeal also fails.
16 Ground 6 must fail too. The appellant conceded that he did not make any claims regarding the Awami League before the Tribunal, and the Tribunal did not make any findings touching or consequential upon such a claim.
17 The Federal Magistrate did not refer to any argument regarding the construction of s 422B in what were, in the circumstances, reasonably detailed reasons for judgment. There is no record that the appellant advanced any argument concerning this provision. It is difficult to see what could be said about s 422B that might benefit the applicant in this case. In this Court, the appellant has not been able to state any such argument, or to point to any record of it being made. Accordingly, I accept the first respondent’s submission that the appellant did not make any such argument before the Federal Magistrate and, in any case, there is no merit in it. Ground 7 also fails.
18 In summary, for the reasons stated, none of the asserted grounds of
appeal are made out on the appeal. The appeal should be dismissed
with
costs.
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Counsel for the First Respondent:
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Solicitors for the First Respondent:
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Date of Hearing:
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Date of Judgment:
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