SZJXU v Minister for Immigration and Citizenship [2008] FCA 1129 (6 August 2008)

Last Updated: 8 August 2008

FEDERAL COURT OF AUSTRALIA

SZJXU v Minister for Immigration and Citizenship [2008] FCA 1129

Migration Act 1958 (Cth) s 424A

SZJJC v Minister for Immigration and Citizenship [2008] FCA 614
SZLMM v Minister for Immigration and Citizenship [2008] FCA 801




























SZJXU and SZJXV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 692 OF 2008

TRACEY J
6 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 692 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJXU First Appellant SZJXV Second Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	6 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the first respondent’s costs of the appeal fixed in the sum of $3,400.

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 692 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJXU First Appellant SZJXV Second Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	TRACEY J
DATE:	6 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal against a judgment of a Federal Magistrate delivered on 30 April 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down 5 December 2006: see SZJXU v Minister for Immigration and Citizenship [2008] FMCA 536. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

2 The appellants are husband and wife who are citizens of India. They entered Australia on 26 April 2006 short term visitors’ visas. On 2 June 2006 the appellants lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs as it was then known. A delegate of the first respondent refused the application for a protection visa on 1 July 2006. On 27 July 2006 the appellants applied to the Tribunal for a review of that decision.

BACKGROUND

3 The appellant husband claimed to fear persecution from Muslims due to his religion as a Hindu. The appellant wife relied on the claims of her husband as part of the family unit. It will be convenient in these reasons to refer to the appellant husband as the appellant.

4 The appellant claimed that he was an active member of the Vishwa Hindu Parishad (VHP) in his area and that, by 2002, he was the president of the VHP based at Swani Narayan Temple. In February 2002, he and many other members of the VHP were returning on a train from the birth place of Lord Rama, a Hindu god. The train was stopped at Godhra and was set on fire. More than 100 people were burned alive. The appellant and his co-passengers miraculously escaped. Hindus blamed the attack on Muslim fundamentalists, which led to Hindus attacking Muslims, Muslims attacking Hindus and ultimately the Hindu Muslim riots.

5 On 4 March 2002, the appellant discovered his shop had been looted and set on fire. After he complained to the police Muslim fundamentalists threatened to kill him. The members of the VHP who had also been affected took their cases to the state government, but, after virtually no progress, the VHP started organising actions against fundamentalist Muslims. The appellant received death threats, and, on one occasion, he was beaten mercilessly and told that he would shortly be killed. The appellant could not be assured of protection from the government and, after great difficulty, he and his wife fled to Australia.

REFUGEE REVIEW TRIBUNAL

6 The Tribunal accepted that communal rioting occurred sporadically in India and that the appellant’s shop may well have been destroyed in 2002 as claimed. The Tribunal found that the appellant’s claims that threats and attacks against them were not credible in light of the fact that the appellant and his wife had remained in the same area for four years after the riots and that they had journeyed abroad and returned to the same area. The Tribunal found that, even if it accepted that the appellant had a well-founded fear of persecution, which it did not, the appellant could safely relocate within India. This finding was based on country information.

FEDERAL MAGISTRATES COURT

7 On 28 December 2006 the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court. The appellant claimed that the Tribunal "relied on independent information without considering the [appellant’s] personal persecution"; "failed to consider whether the [appellant’s claims] were Convention related"; did not consider relocation issues and how this would affect" the appellant and that the Tribunal "was guilty of generalising the Indian situation without looking at the [appellant’s] claims and testimony." In his affidavit in support of the application, the appellant also claimed that he had been denied natural justice. In an amended application filed on 6 February 2008 the appellant claimed that the Tribunal misconstrued the term "political opinion" as it appears in the Refugee Convention; made findings in the complete absence of evidence; and breached ss 424A and 425 of the Act.

8 The Federal Magistrate held that the appellant’s contention that the Tribunal relied on independent country information without specifically considering his personal persecution did not constitute an allegation of jurisdictional error. The appellant had not established that the Tribunal had failed to consider his claims. It was open to the Tribunal to prefer independent country information to the appellant’s claims. It was also open to the Tribunal to have regard generally to independent country information and the weight to be given to such information was a matter for the Tribunal. The contention that the Tribunal failed to consider whether the appellant’s claims were Convention related effectively sought merits review, which the Court did not have jurisdiction to provide. Insofar as the appellant’s contentions sought to assert that the Tribunal failed to consider the nexus between the appellant’s claims and the Convention reasons, it was apparent from the whole of the Tribunal’s reasons that the Tribunal understood and dealt with the appellant’s claim to fear persecution based on his religion. A lack of an express reference to whether the appellant’s claims were Convention related was not suggestive of jurisdictional error.

9 In relation to the appellant’s claim that the Tribunal did not consider relocation issues and how relocation would affect the appellant, the Federal Magistrate found that the Tribunal did assess whether it was reasonable and practicable in the circumstances for the appellants to relocate in accordance with the principles considered in NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFA 37 and SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 237 ALR 634.

10 The Federal Magistrate held that there was nothing in the material before the Court to establish a failure to comply with s 425 of the Act in the course of the hearing or that the appellant had been denied natural justice. The appellant had not established any jurisdictional error. There was no evidentiary basis for the appellant’s contention that the Tribunal failed to raise determinative issues with him and that the Tribunal failed to invite the appellant’s wife to a Tribunal hearing.

11 The appellant claimed that the Tribunal failed to appreciate that opposition to official corruption can constitute a political opinion. The Federal Magistrate considered whether the appellant had raised the claim of opposition to official corruption and noted that any such claim must represent "a substantial clearly articulated argument relying upon established facts" and referred to Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 and SZBXR v Minister for Immigration and Citizenship [2007] FCA 1909. The Federal Magistrate concluded there was "nothing in the material before the Court to raise a clearly articulated claim that the applicant was being targeted for his opposition to official corruption." Therefore, there was no obligation on the Tribunal to consider a well-founded fear of persecution by reason of his asserted opposition to official corruption.

12 The Court held that there was no foundation for the appellant’s "no-evidence" claim.

13 The Federal Magistrate did not consider that the appellant’s claim that the Tribunal had breached s 424A had been established.

14 As the appellant had not established any jurisdictional error, the Federal Magistrate dismissed the appellant’s application with costs.

APPEAL TO THIS COURT

15 The notice of appeal to this court was filed on 13 May 2008. The notice of appeal contained three grounds. The first ground read: "The Honourable Federal Magistrates Court erred in interpreting the construction of s 424A of the Migration Act 1958 ("the Act")."

16 The second ground read: "His Honour failed to determine that the purpose of s 424A was not served in the proceeding of this applicant."

17 The third ground read: "The Honourable Court also erred in law determining that the Refugee Review Tribunal ("the Tribunal") was in a breach of procedural fairness."

18 No attempt was made to particularise any of these grounds. Not only did this create difficulty for the Court. It meant that, in preparing submissions on behalf of the Minister, counsel was forced to make assumptions about the issues raised by each of the grounds and to respond to what were assumed to be the appellant’s arguments.

19 The appellant appeared in person on the hearing of the appeal. He had the assistance of an interpreter. His wife did not attend.

20 The appellant initially asserted that he was the author of the notice of appeal. He later conceded that it had been prepared for him by a "friend". He had no understanding of what was comprehended by any of the grounds as drafted and was unable to assist the Court in any way.

21 Having examined the Tribunal’s reasons and those of the Federal Magistrate I can discern no basis for finding that any of the alleged grounds has been made out. Nor have I been able to detect any other jurisdictional error which would warrant the setting aside of the Tribunal’s decision.

22 The appeal lacks merit and should be dismissed.

23 Before concluding these reasons I wish to make a number of observations. In addition to the present appeal I have two other appeals in my list this week in which precisely the same grounds of appeal are relied on. This is so despite the fact that each of the cases has a different procedural history and that different claims have been made. It would appear that "friends" of appellants are providing appellants with proforma notice of appeal which are being adopted without the appellant having any understanding of the contents of those notices.

24 I understand that these are not isolated cases. Flick J noticed the practice of appellants using proforma grounds of appeal in SZJJC v Minister for Immigration and Citizenship [2008] FCA 614. Jessup J encountered this practice earlier this year and refers to it in his judgment in SZLMM v Minister for Immigration and Citizenship [2008] FCA 801.

25 The use of proforma notices of appeal is to be deprecated. I join with their Honours in expressing the concern that the practice has the potential to harm the interests of appellants and to compromise the ability of the Court to deal appropriately with appeals.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated: 6 August 2008

	Appellant was self represented
Counsel for the First Respondent:	Mr J D Smith
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	6 August 2008
Date of Judgment:	6 August 2008