FEDERAL COURT OF AUSTRALIA

SZHWD v Minister for Immigration and Citizenship [2008] FCA 252

PRACTICE AND PROCEDURE – where appellants sought to raise new ground on appeal – merits of the ground considered in order to determine if leave should be granted – leave refused.

MIGRATION – when appellants applied for an adjournment in the Federal Magistrates Court to retain counsel – where adjournment refused by Federal Magistrate – whether any error in the exercise of the Federal Magistrate’s discretion – where the appellants appeared jointly before the Tribunal – whether it is necessary that the evidence of one appellant be put to the other pursuant to s 424A(1) – appeal dismissed.

Migration Act 1958 (Cth) s 424A(1), s 424A(3)(b)

Applicant M47/2004 v Minister for Immigration and Multicultural Affairs [2006] FCA 176followed

NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 followed

SZHTL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1052 followed

SZHWD & SZHWE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2063 OF 2007

LANDER J

6 MARCH 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal against an order of a Federal Magistrate made on 4 October 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 16 November 2005 and handed down on 25 November 2005.  The Tribunal had affirmed a decision of a delegate of the Minister of Immigration and Citizenship (as he is now known) to refuse to grant Protection (Class XA) visas to the appellants.

2                     The appellants are husband and wife who are citizens of India.  They arrived in Australia on 15 January 2005.  On 24 February 2005 the appellants lodged an application for protection visas.  In the protection visa application, only the first appellant, the husband (the appellant), made claims under the Refugees Convention, being the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, with the appellant wife relying on membership of his family unit.  On 5 April 2005, a delegate of the first respondent refused the application for protection visas.  On 4 May 2005, the appellants applied to the Tribunal for a review of that decision.

Background Facts

3                     The appellant claimed he was persecuted on the grounds of religion.  In his protection visa application, the appellant claimed to be Sikh who operated an electronics shop in a village of 4,000 people in an area where the other shops were mainly owned by Hindus.  He claimed that some of the local people were members of the Rashtriya Swyamsevak Sangh (RSS) which advocated the spread of Hindu culture and was affiliated with the Bajrang Dal, an organisation apparently formed to counter Sikh Militancy.

4                     The appellant claimed that members of the Bajrang Dal and the RSS were jealous of his business and started abusing and threatening him.  The appellant stated that although he complained to the police they did nothing.  He therefore assumed the police were receiving bribes.  The appellant then closed his electronics shop and opened a stationery shop in another village near a Catholic school where his wife worked.  This was another Hindu area and he was harassed again.  The appellant claimed that in December 2003, members of the RSS and Bajrang Dal went to his shop, argued with him and fired some shots into the shop when he closed the door.  He stated that he again complained to the police who responded by detaining him for three days and beating him.

5                     A delegate of the first respondent found that the appellant did fear persecution for a Convention reason, however, found that his statement did not substantiate his claim that he was persecuted for a Convention ground by Hindu extremists.  Instead, the delegate was of the view that the “events as described by him appear[ed] to be criminal matters.”  The delegate also stated that “there is no evidence of ongoing persecution of Sikhs now or in the foreseeable future.”  The delegate further stated that the appellant had the option of relocating his business to areas which were not predominantly Hindu.  The delegate therefore found that the appellant did not have a well-founded fear of persecution.  The appellants applied to the Tribunal for a review of that decision.

6                     On 10 October 2005, the Tribunal took evidence from the appellant and his wife, and the appellant’s brother.  During the course of the hearing, the appellant’s adviser handed the Tribunal a fax dated 10 October 2005, which was sent to the Tribunal after the hearing had commenced.  This document appeared to suggest that the protection visa application had omitted claims of persecution in relation to the appellant wife.  The letter stated that the appellant wife had received threatening phone calls and she was asked to stop working at the Catholic school.  The letter stated that “[t]he link between the wife’s occupation and the threats to the husband are cumulative in the reasons for the RSS and the Bajrang Dal harassing and threatening the husband and the wife.”

7                     In another statement submitted to the Tribunal at the hearing, the appellant stated:

I seek the protection of the convention because me and my wife are not safe over there. we (sic) were prosecuted (sic) for following reasons:

-             I am sikh (sic)

-             My wife works for different religion

-             By workers of Rss (sic) and Bajrang Dal parties on political grounds

-             Racist landless hindus

8                     On 20 October 2005 the Tribunal sent the appellants a letter inviting them to comment on the information contained in the letter.  The letter drew particular attention to inconsistencies in the evidence of the two appellants, including evidence which was given at the hearing.  The appellants were advised that because they had raised claims at the hearing which had not previously been raised, this cast doubts upon the veracity of those claims.  The letter requested that the information be received by the Tribunal by 14 November 2005.  On that date, the appellants replied by facsimile responding in part but requested an extension of time to provide further evidence.  The Tribunal refused to grant any extension of time.

The Tribunal’s Decision

9                     The Tribunal accepted the appellant operated an electronics store and later opened a stationery shop near the Catholic school where his wife taught.  However, the Tribunal did not accept the appellant closed his electronics shop because of problems he was having with the RSS or Bajrang Dal.  The Tribunal found the appellant’s evidence as to why the RSS or Bajrang Dal were threatening him to be inconsistent.  The Tribunal did not accept the electronics shop was damaged in 2002, particularly as the claim was first raised at the hearing before the Tribunal.  The Tribunal also did not accept the appellant received threatening phone calls in 2000 due to his wife’s employment because she had worked at the school since 1994, yet only started receiving threats in 2000.  The Tribunal found inconsistencies between the appellants’ evidence in relation to who received the threatening telephone calls.

10                  The Tribunal did not accept the appellant’s home was damaged because this claim was also not made before the hearing.  The appellant’s wife’s evidence did not indicate the house had ever been damaged.  The Tribunal did not accept the RSS and Bajrang Dal came to the appellant’s shop, argued with him or fired some shots because the appellant’s evidence at the hearing did not support that claim.  The Tribunal also did not accept that the appellant was attacked by four people with an iron rod whilst walking on the road because, again, this claim was raised by the appellant at the hearing for the first time and the appellant’s wife’s evidence did not support such a claim.

11                  As the Tribunal did not accept the appellant had experienced problems with the RSS and Bajrang Dal, it did not accept the appellant reported the incidents to police and therefore did not accept he experienced the problems with the police about which he complained, such as having been detained, as he claimed.  Furthermore, the Tribunal noted that the evidence the appellant provided regarding the protection sought from the police was inconsistent.

12                  The Tribunal placed no weight on the appellant’s brother’s evidence because his evidence was only that which had been told to him by the appellant.

13                  The Tribunal found the appellant did not face a real chance of persecution from the RSS or Bajrang Dal for reason of his Sikh ethnicity, his operation of businesses in predominantly Hindu areas or his wife’s employment at a Catholic school.  The Tribunal stated that no specific Convention claims were made by or on behalf of the appellant wife and the fate of her application depended on the outcome of the appellant’s application.  As the appellant could not be granted a visa, the appellant wife was also ineligible.

Application in the Federal Magistrates Court

14                  On 16 December 2005 the appellants applied for judicial review of the Tribunal’s decision in the Federal Magistrates Court asserting that the Tribunal exceeded its jurisdiction, erred in law by failing to ascertain the reasons for the appellant’s persecution and failed to give the appellants the “benefit of the doubt”.

15                  An amended application was filed on 29 May 2007, which raised two new grounds: the Tribunal “constructively” erred in its application as to what amounted to serious harm under s 91R(2) of the Migration Act 1958 (Cth) (the Act) (for which the appellant provided various particulars which indicated there was serious harm); and breach of the “common law Rules of Natural Justice in that it failed to comply with procedural fairness” when the Tribunal dismissed the application on the basis of lack of credibility due to internal inconsistencies between evidence.

16                  At the hearing before the Federal Magistrate, the appellant sought an adjournment of the hearing to enable him to consult with a barrister.  The Federal Magistrate considered the adjournment request but held there was no explanation why the appellant had not consulted a barrister earlier and that, in any event, the appellant’s case lacked merit and refused the adjournment.

17                  The Federal Magistrate considered both the appellants’ original and amended applications for judicial review.  His Honour found that as the Tribunal did not find the appellant suffered any harm at all, it made any assessment of whether the harm claimed could constitute “serious harm” for the purposes of s 91R of the Act irrelevant.  His Honour noted many of the particulars in support of the ground sought merits review.

18                  In relation to the second ground raised in the amended application, the Federal Magistrate noted that s 422B of the Act applied to exclude the common law rule of natural justice.  His Honour found that, in any event, the Tribunal had complied with the procedural fairness obligations in ss 424A and 425 of the Act, and that there was no error in the Tribunal’s approach.  His Honour noted that the appellants were provided with a letter pursuant to s 424A(1) which identified a number of internal inconsistencies in the appellant’s own evidence and inconsistencies between his evidence and that of his wife.  He also observed that the appellant’s adviser had provided a response.

19                  Because they were unrepresented, the Federal Magistrate considered the appellants’ original application.  He found that grounds 1 and 2 sought to re-agitate the merits of the decision and that ground 3 sought to take issue with the Tribunal’s assessment of the appellant’s credibility.  The Federal Magistrate held that the grounds did not raise any jurisdictional error.

20                  Finally, his Honour found no jurisdictional error in relation to the appellant wife’s application because (at [29] to [30] and [35]):

29.       The Tribunal rejected the applicant wife’s application on the basis that not having put forward any separate claims of her own, her application was dependent on the outcome of her husband’s application.  In relation to the applicant, the Tribunal clearly put to him both at the hearing but also by way of its letter of 20 October 2005, that there were inconsistencies between his version of events and his wife’s recollection of events, and he was given the opportunity to address these inconsistencies by way of a written response.  I note that the adviser provided such a response (CB 126).  This ground as particularised also does not succeed.

30.       As set out above the applicant wife’s application for a protection visa was dependent on the substance of her husband’s claims.  (See the relationship between s36(2)(a) of the Act and s.32(2)(b) of the Act and its applicant to the relevant circumstances of this matter.)

…

35.       In all, the Tribunal did not accept the applicant’s claims.  The rejection of these claims, that is, the rejection of the credibility of these claims was unambiguous.  The findings of fact made by the Tribunal in this regard were consistent with what was described by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 (at [67]) as a matter for the Tribunal as the “decision-maker par excellence.”  The applicant wife’s application depended on the outcome of the applicant’s claims.  Having failed to reach the requisite level of satisfaction that the applicant was a person to whom Australia had protection obligations, it followed that the applicant wife’s application could not satisfy the relevant statutory requirements as they applied to her.  While the applicant wife was certainly the spouse of the applicant she was a member of the family unit.  The applicant’s failure to satisfy the Tribunal that he met the criterion set out in s.36(2)(a) of the Act meant that her application also failed.

21                  His Honour consequently found the decision of the Tribunal was a privative clause decision and dismissed the application.

On Appeal

22                  The appellants’ notice of appeal was filed in this Court on 17 October 2007 and raises three grounds.  The first ground challenges the Tribunal’s findings as to relocation.  The second ground challenges the refusal by the learned Federal Magistrate to grant the adjournment application.  It is claimed that in that regard the Federal Magistrate “made jurisdictional error”.  The third and final ground asserts that the Federal Magistrate erred in finding the Tribunal complied with s 424A of the Act “in relation to the separate information of the appellant wife and the appellant husband.”

Appellants’ Submissions

23                  In support of the first ground of appeal, the appellants submit that not only should the Tribunal ought to have considered the issue of relocation, but that in deciding whether or not the applicant is a refugee, an assessment must be made as to whether or not the applicant can effectively relocate to another part of his or her country and receive protection there.  The appellants further submit that the Tribunal failed to address the reasonableness of relocation.  The appellants contend that the Tribunal failed to look at whether they could have avoided the alleged harm by relocating to another area.

24                  With respect to the second ground of appeal, the appellants contend that as their original representative did not have “the appropriate right of appearance and representation” that they should have been granted the requested adjournment.  They contend that this refusal resulted in them being denied procedural fairness.  The appellants rely on SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 to contend “that it is appropriate for solicitors to attend to legal matters when relied upon to do so.”

25                  Finally, with respect to the third ground of appeal, the appellants submit that the Tribunal made its decision without having sent a letter pursuant to s 424A of the Act, in contravention of that section.  The appellants rely on SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 per Allsop J at [225].

First Respondent’s Submissions

26                  The first respondent contends that leave is required for the appellants to raise the first ground of appeal: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [166].  He further contends that, in any event, as the Tribunal made no relocation finding, no issue arises in connection with whether the Tribunal assessed the issue of relocation properly.

27                  With respect to the second ground of appeal, the first respondent submits that the decision to refuse the adjournment application by the Federal Magistrate was made in the exercise of his discretion as trial judge.  It was contended that the decision was open to the Federal Magistrate.

28                  In relation to the third ground of appeal, the first respondent submits that there was no error in the Federal Magistrate’s decision, as the appellants were provided with a s 424A letter.  The first respondent submits that, in any case, on a joint application such as this one, information provided by one joint applicant need not be provided to other joint applicants: Applicant M47/2004 v Minister for Immigration and Multicultural Affairs [2006] FCA 176; SZHTL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1052.

Analysis

29                  The first respondent is correct in contending the first ground of appeal was not raised before the Federal Magistrate and, therefore, the appellants require leave: NAJT 147 FCR 51.  No explanation has been given for the failure to raise this matter in the Federal Magistrates Court.  The appellant, of course, was unrepresented both before the Federal Magistrates Court and this Court.  In order to determine whether leave should be granted to the appellants to raise this ground on appeal, I shall shortly consider the merits of the ground.  As the first respondent asserts, in order to attack any finding of the Tribunal on issues of relocation, there must first be a finding.  There was no finding because the question of relocation never arose.  It would only have arisen if the appellant had made out his primary contention that the applicant had a well-founded fear of persecution if he were to return to India.  I accept, as the first respondent contends, that because the Tribunal made no relocation finding this ground raises no relevant issues on appeal.  Leave must be refused.

30                  In relation to the second ground of appeal, although it is desirable that applicants in these cases be represented where possible, it is not a matter of right.  The Federal Magistrate refused the adjournment application on the grounds that no satisfactory explanation was provided for the late request for the adjournment and that the lack of merits in the case did not warrant any further delay in the matter.  No error has been shown in the Federal Magistrate’s exercise of discretion.  For that reason, this ground also fails.  The decision of SZFDE  [2007] HCA 35 is not relevant to this ground.

31                  Finally, in relation to ground 3, I accept that although it is unnecessary for the evidence of one appellant to be put to another when two appellants submit a joint application for review to the Tribunal (ss 424A(1) and (3)(b); Applicant M47/2004 [2006] FCA 176; SZHTL [2006] FCA 1052), that in any event, the Tribunal put any inconsistencies between the appellants’ evidence that it relied upon to the appellants in the letter it sent to them on 20 October 2005.  I have identified the matters contained in the letter earlier in these reasons.  This third ground of appeal also fails.

Conclusion

32                  There is no demonstrated error in the learned Federal Magistrate’s decision.  Accordingly, the appeal must be dismissed and the appellant must pay the first respondent’s costs.

Associate:

Dated:         6 March 2008