SZJDZ v Minister for Immigration & Citizenship [2007] FCA 173 (21 February 2007)

Last Updated: 22 February 2007

FEDERAL COURT OF AUSTRALIA

SZJDZ v Minister for Immigration & Citizenship [2007] FCA 173

SZJDZ AND SZJEA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2120 OF 2006

CONTI J
21 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2120 OF 2006

BETWEEN:	SZJDZ First Appellant SZJEA Second Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	CONTI J
DATE OF ORDER:	16 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellants to pay the first respondent’s costs.
3. The title of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.

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 2120 OF 2006

BETWEEN:	SZJDZ First Appellant SZJEA Second Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	CONTI J
DATE:	21 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Background

1 This is an appeal against the judgment and consequential orders of Federal Magistrate Scarlett delivered on 12 October 2006 whereby his Honour dismissed an application for judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’), handed down on 11 July 2006. The Tribunal had earlier affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs (as then designated) made on 24 March 2006 not to grant protection visas to the husband and wife appellants.

2 The appellants are citizens of India who arrived in Australia on 17 December 2005 from India. On 11 January 2006 the appellants lodged applications for protection visas with the Department of Immigration and Multicultural Affairs.

The Tribunal’s decision

3 On 22 May 2006 the Tribunal invited the appellants to attend a hearing on the 20 June 2006. The appellant husband attended the hearing and was assisted by an interpreter, but the appellant wife did not attend. The Tribunal did not draw any adverse inferences from the absence of the appellant wife from the Tribunal hearing and took into account the evidence presented by the appellant husband on behalf of both of them.

4 In the proceedings before the Tribunal the appellant husband claimed that he was a businessman in Mumbai, who had obtained a government ration card to which he was not entitled. He claimed that as a result of using the bogus ration card, he was arrested and charged by the police and became the subject of judicial proceedings. The Tribunal acknowledged that the appellant husband was implicated in a forged ration card case which he had described, but found nothing in this claim to be Convention-related, either in the context of the evidence he presented as to how he became involved, or to the extent that he might have been implicated, in the forgery case. The Tribunal found that nothing involved in that case had anything to do with political opinion, whether real, imputed or implied. Despite accepting the claim that the appellant husband and wife were harassed by police and also the appellant husband’s claims about his family, the suggestion that the police harassment was susceptible to being construed as persecution, or as indicative of persecution in the reasonably foreseeable future, was dismissed by the Tribunal. The Tribunal found moreover that the evidence of the appellants as to being allowed to leave Mumbai should be seen as indicative of there being no limit upon their freedom or privacy. In the result the Tribunal was not satisfied that the appellants had a well-founded fear of persecution.

The review proceedings presented by the appellants to the Federal Magistrates Court

5 The case pleaded to the Federal Magistrates Court below was threefold, as follows:

(i) That the Tribunal exceeded its jurisdiction by finding that:

‘The evidence of the [appellants] being allowed to leave Mumbai leads the Tribunal to the view that the police in that city did not place any sustained or systematic limitations on the [appellants’] freedom or their privacy.’

(ii) That the Tribunal erred in law when it concluded that:

‘The Tribunal is not satisfied that the [appellants] have well founded fear of Convention related persecution in India and that they are not refugees.’

(iii) The Tribunal failed to consider the appellant’s claims when nevertheless accepting that some local police officers continued for a time to regard the appellant husband as a criminal and that they harassed him and pestered the appellant wife.

6 Scarlett FM recorded that the present first appellant had obtained ‘... some assistance in preparing his application and was not able to comment on any of the grounds in it’, and further that the appellant had claimed that he could not leave Australia ‘because he had some problems in India and...if he were to go back to India it would create a lot of problems for him’.

7 In the light at least of the vagueness of those matters, the Federal Magistrate concluded that the appellants had not made out any grounds for relief, and that the case presented by the appellants had not ‘come close to disclosing a reasonable cause of action’. The Federal Magistrate pointed out further that ‘[t]here is no particularisation as to how the Tribunal exceeded its jurisdiction in reaching a finding of fact that the [appellants] were able to leave Mumbai and obtain a passport, which points to the view that the police in that city did not place any sustained or systematic limits on the [appellants’] freedoms or their privacy’. Moreover Scarlett FM was unable to identify any jurisdictional error arising due to the operation of s 424A of the Migration Act 1958 (Cth) (‘the Act’). The Federal Magistrate also found that the Tribunal had weighed up the evidence and made findings of fact that were open to it on the material before the Tribunal.

The grounds of appeal and written submissions on appeal to the Federal Court

8 The notice of appeal, filed with the Federal Court on the 30 October 2006, raised the following grounds:

(i) The Tribunal failed to consider relevant documents in support of the application for a protection visa; and
(ii) The Tribunal acted in breach of s 424A(1) of the Act and therefore committed jurisdictional error, error of law and denial of natural justice.

9 At the hearing of the appeal to the Federal Court, the appellant was unable to articulate any material or compelling submission in support of those grounds. The appellant presented five pages of written submissions from the contents whereof I was unable to discern any viable ground of appeal. The material thus provided purportedly made complaint about the Tribunal’s findings, but did not specifically or directly address the findings and conclusions of the Federal Magistrate’s reasons for decision or orders below. The complaints about the Tribunal’s findings were lengthy, but did not demonstrate explicitly or implicitly any viable basis for review which should supposedly have been distilled by the Federal Magistrate.

10 The first appellant (of course the husband) appeared alone before the Court, and thus in the absence of his wife the second appellant. I invited the first appellant to read the Minister’s submissions, which he did over the course of the ensuing half hour. Thereafter I asked the first appellant whether he wished to submit anything further to the Court by way of response to the written submissions of counsel for the Minister. In response, the appellant did not draw attention to anything appearing in the reasons for judgment below, but stated that notwithstanding his best efforts, he had been unable ‘to collect some more evidence from India, but for that I need more time’. He did not indicate the nature or extent of any such further evidence he would seek to obtain, if allowed more time in order to do so. Counsel for the Minister opposed that request for ‘more time’. In the course of further discussion, the appellant acknowledged that he had received legal advice.

11 In the result I informed the appellant that there was ‘nothing in your written submissions or anything else you have told me which demonstrates any error in the judgment of the Federal Magistrate below’. It would be of no utility to endeavour to summarise the written submissions provided by the appellants, though I will repeat below the concluding thirteen (13) lines in order to exemplify their unspecific content and absence of distillation of any specific error of law:

‘...The question before the Tribunal was whether or not it could be satisfied that the level of protection provided by the state would be adequate to account for the violence it was aware of. The Tribunal’s satisfaction as to the matter was not premised upon the question of adequacy but equality of protection. The relevant consideration of equal protection displaced the primary consideration of law that the Tribunal was bound to address. The Tribunal, therefore, by determining whether or not persecution will occur by asking whether or not the state offers the same level of protection to that person as it does other citizens, did not decide the real question in the case as it had no rational basis upon which to answer the question of the effectiveness of protection and in so doing failed to properly assess whether there was a real chance of persecution in the future, the consequence of which is a constructive failure of jurisdiction.’

In my opinion the vagaries of that written material could not be regarded as having advanced any conceivably viable case on the appeal from the reasons for judgment of Scarlett FM. Accordingly I dismissed the appeal and ordered the appellants to pay the Minister’s costs of the appeal.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 21 February 2007

Appellant appeared in person
Counsel for the First Respondent:	Mr G Kennett
Solicitor for the First Respondent:	Blake Dawson Waldron Lawyers
Date of Hearing:	16 February 2007
Date of Judgment:	21 February 2007