FEDERAL COURT OF AUSTRALIA

SZCGM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1196

SZCGM v minister for IMMIGRATION and multicultural and INDIGENOUS affairs

NSD 254 of 2005

ALLSOP J

9 SEPTEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from orders made by a Federal Magistrate dismissing an application for review by the appellant in respect of a decision of the Refugee Review Tribunal (the “Tribunal”) which affirmed the decision of a delegate not to grant a protection visa.

2                     The matter was heard by me, in the appellate jurisdiction of the Court, sitting as a single Judge, pursuant to a direction of the Chief Justice under s 25(1A) of the Federal Court Act of Australia Act 1976 (Cth).

3                     The appellant is a citizen of the Republic of India. He claimed to fear persecution for reasons of his political opinion. The appellant claimed that he was an active member of the Congress Party and was elected as the Vice President in his local area. He claims to have suffered harm from members of the BJP, the Congress Party itself and from the local police. The adverse treatment he claims to have suffered were described by the Tribunal as being hassled by the police, stones being thrown at his shop, incidents of extortion which were refused, and overnight detention (from which the appellant was released for lack of evidence) on the basis of allegations that the appellant made threats to the lives of local politicians.

4                     The Tribunal wrote to the appellant and indicated that, on the material available to it, it would be unable to make a decision favourable to the appellant. The appellant, in writing, declined the invitation to attend the hearing to give oral evidence.

5                     The Tribunal found the appellant’s claims difficult to follow and commented that they seemed confusing at various points and difficult to comprehend fully. The Tribunal found that the fact that the appellant was released from detention demonstrates that there is a rule of law operating in India. The Tribunal was also satisfied that there was sufficient legal remedy available to the appellant to see his complaints about local police extortion dealt with. The Tribunal also had some reservations about the delay in the appellant departing from India despite having obtained valid travel documents some three weeks before. The Tribunal also found it implausible that the appellant, being a member of the Congress party, which was the ruling party in his State, would face any persecution there. It concluded that cumulatively the incidents complained of did not amount to a serious harm that could be called persecution.

6                     The application and amended application before the Federal Magistrate alleged a number of flaws in the Tribunal’s reasons and approach.  The original application stated the following as the grounds of the application:

1.          RRT did not require the comment regarding the all of my claims.

2.          The tribunal made his decision in bad faith.

3.          The tribunal deprived me of the natural justice.

4.          The tribunal denied the evidentiary proof of my claim.

5.          The tribunal’s decision did not reflect the material facts of my claim.

6.          The tribunal has given a decision, which was preset in the back of it’s mind.

7.          The tribunal mixed up many facts with this decision which affected the decision.

8.          The tribunal concentrated in particular fact, while ignored many other facts in this condition.

9.          The tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim.

10.      I will provide more details of grounds later.

[grammatical errors as per original]

7                     The grounds in the amended application did not identify any ground of a jurisdictional error.  It contained some important elements of the appellant’s claims and an exhortation to the Federal Magistrate to examine the claims fairly. 

8                     The appellant attached to the amended application three photocopied documents being a copy of his Indian National Congress identity card, a letter from the president of the Maharastra, Mumbai Division of the Indian National Congress congratulating the appellant on being elected as the Vice President of the Party followed by a page of election results, and a copy of an oral judgment of the Court of Sessions for Greater Bombay at Mumbai dated 5 November 2002 naming the appellant as one of the accused presumably relating to the alleged false charges brought against him. The amended application does not indicate the relevance of the attached documents, nor do they even refer to them.

9                     The Federal Magistrate held that the refusal of the appellant’s protection visa application by the delegate was attributable to the appellant having only made short claims which he never attempted to substantiate.   His Honour pointed to the fact that the appellant presented no further information to the Tribunal, nor did he attend the hearing. His Honour did not find any feasible ground in the amended application.  Rather, he saw it as constituting a plea for refugee status and was not one that could be considered by a court on review. The Federal Magistrate found no jurisdictional error affecting the Tribunal decision.

10                  In the proceeding before the Federal Magistrate the appellant filed an outline of submissions.  The Federal Magistrate considered the matters raised in it. One matter raised was the appellant’s apparent explanation for not attending the Tribunal hearing. He indicated that he did not attend because he was waiting for documentary evidence. Without the supporting documentary evidence to prove his claims he was not prepared to attend the Tribunal hearing to provide oral evidence. This statement was not verified, but the Federal Magistrate was prepared to accept it as true.  The appellant did not claim that either he or his advisors sought an adjournment of the hearing to which he was invited. The Federal Magistrate found that the appellant had not put forward any basis on which a claim of denial of procedural fairness could be made out against the Tribunal for proceeding as it did on the material available to it.

11                  The amended notice of appeal before this Court included grounds that do not appear to have been raised earlier.  The amended notice of appeal alleges a failure by the Federal Magistrate to find jurisdictional error, procedural fairness and to grant relief under s 39B of the Judiciary Act 1903 (Cth); it states that the grounds of relief are similar to that in the Muin and Lie litigation (Muin v Refugee Review Tribunal (2002) 190 ALR 601); it makes reference to s 474 of the Migration Act 1958 (Cth); it makes claims that the Federal Magistrate erred by failing to consider the real state of affairs of the appellant, that the appellant feared harm and that the present ruling government (presumably in India) fails to protect civilians lives.  None of the grounds are particularised.  Further, but still unparticularised, the appellant claims that the Federal Magistrate and the Tribunal erred in law by failing to accept on the evidence before it that the appellant was a popular member of Congress despite his submitting sufficient documentation to the Tribunal to demonstrate this and that the Tribunal did not disclose all adverse country information which he claims was used against him. The appellant states that he is seeking legal representation and will provide more details in his submission.

12                  The appellant handed up written submissions at the hearing of the appeal.  He made no oral submissions.  The written submissions dealt with various assertions not on their faces amounting to jurisdictional error.  There was an unparticularised assertion of lack of good faith and an assertion that his claims had been ignored.

13                  The written submissions did, however raise the possible application of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162.

14                  I will deal with the matter leaving SAAP to one side for the moment.  In NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119, I set out the essentials of the position faced by an applicant who chooses not to attend a hearing in circumstances where the Tribunal has indicated that it is unable to make a decision favourable to the applicant.  At [52]-[56] I said the following:

If the Refugee Review Tribunal (the Tribunal) comes to the view, apparently within the bounds of reason, that, having considered the papers, it is not satisfied that Australia owes protection obligations to an applicant such as the appellant, it is required to inform the applicant of that fact and invite him or her to a hearing to put his or her case.

That was the position here. Such an invitation was given.

The appellant did not take up that invitation.

The Tribunal remained unsatisfied of the relevant matter to which I have referred.

In those circumstances, unless the Tribunal somehow misdirected itself, or otherwise failed to comply with the Migration Act 1958 (Cth) (the Act) or other applicable law, ss 36 and 65 of the Act, read together, required the refusal of the visa.

15                  Here the Tribunal in a rational way has apparently dealt with all the claims and material put before it.

16                  The Tribunal was unable to be satisfied of the relevant criterion required by the Migration Act 1955 (Cth) and Regulations – that the applicant had a well-founded fear of persecution for a Convention reason.  In giving reasons for that lack of satisfaction the Tribunal made certain findings and conclusions as to the implausibility of some material and claims.  It might be said that in the end all the Tribunal did was to weigh up all the material before it and express why it was not satisfied of the relevant criterion.  I refer to my reasons in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 and in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195.

17                  VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 and Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 call for a distinction between the information being the reason or a part of the reason, and evaluation or cognitive process being the reason or part of the reason.  The distinction can be fine, but on these authorities it is called for by s 424A.

18                  Here, until the penultimate paragraph under the heading “Findings and Reasons”, all the Tribunal was expressing was its conclusions as to the vagueness and incoherence of the claims.  To that extent these parts of the reasons reveal that this part of the reason for the decision was the cognitive or evaluative process not the information itself.

19                  However, the Tribunal then went on to say the following:

The Tribunal notes that the applicant has not claimed to have been involved in anything more serious than verbal abuse with his political opponents.  His claims about adverse treatment he has suffered encompass some stones thrown at his shop and an overnight detention.  The Tribunal is not of the view that even cumulatively these incidents amount to serious harm that can be called persecution.  The Tribunal notes that the applicant’s own party, the Congress Party, is the governing party in Maharashtra State and finds it implausible that he would face persecution there for reason of his political opinion.

20                  This involves a factual conclusion that the contents of the information if accepted (which for the purposes of the paragraph they were) did not amount to persecution.  The part of the reason here was that the information itself was the foundation of a factual conclusion which played a part in the reasoning of the Tribunal.  The question is, however, whether, to the use the words of Finn J and Stone J in VAF at [41]:

Considered in the context of the tribunal’s reasoning process and having regard to the aggregate of findings made that rejected both that the appellant had been persecuted for a Convention reason and that his situation was such as to give rise to a well founded fear of persecution, reference to the information as to his behaviour in Australia can only be categorised as being relatively minor and unimportant in the scheme of things. It was not so integral to the reasoning process rejecting the appellant’s claim as to require as a matter of fairness that the appellant be told that information (cf s 424A(1)(a)) and why it was relevant to the review (cf s 424A(1)(b)).

21                  Set against the whole background of the balance of the reasons which disclose clearly why the Tribunal’s mental processes prevented it from being satisfied, these findings in the last paragraph are not truly integral to the conclusion.  Further, they can be seen as simply another of expressing what has previously been expressed – that is that the evaluation of the information does not enable a state of satisfaction to be reached.

22                  In substance, the reason for the Tribunal not being satisfied that the appellant had a well-founded fear of persecution was its evaluation of the material put forward earlier by the appellant.  It was not the information earlier provided that was the reasons or part of the reason for the decision, but the mental process of its evaluation, such that the Tribunal was not able, after that evaluation, reach the requisite state of satisfaction.

23                  There was no failure to comply with s 424A.

Associate:

Dated:              9 September 2005