FEDERAL COURT OF AUSTRALIA

SZJJC v Minister for Immigration & Citizenship [2008] FCA 614

MIGRATION – Migration Act 1958 (Cth) – s 424A(1) – provision of information – no response to s 424A letter – “information” not identified – s 424A(3)(a) – information“not specifically about the applicant” – s 430 – reasons of Tribunal – findings as to credibility open to Tribunal – need for Notice of Appeal to comply with Federal Court Rules 1979 (Cth) – prospect of costs against person drafting Notice of Appeal and not the Appellant

Federal Court Rules 1979 (Cth) O 52, r 13(2)(b)

Migration Act 1958 (Cth) ss 424A, 430

Argus Real Estate Holdings Pty Ltd v Lyristakis [2002] FCAFC 256 cited

Commonwealth v Evans [2004] FCA 654 cited

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 considered

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 followed

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 followed

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 followed

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 followed

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 followed

SZJJC v Minister for Immigration & Citizenship [2007] FMCA 1986 cited

VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186 followed

SZJJC v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2529 OF 2007

FLICK J

6 MAY 2008

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The Appellant to pay the costs of the First Respondent of and incidental to the appeal.

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                     The Appellant is a citizen of India who arrived in Australia on 5 January 2006.

2                     Shortly thereafter, on 13 February 2006, he applied to the Department of Immigration & Citizenship for a Protection (Class XA) Visa under s 65 of the Migration Act 1958 (Cth). A delegate refused that application on 3 April 2006 and he applied on 5 May 2006 to the Refugee Review Tribunal.

3                     That Tribunal affirmed the delegate’s decision by way of a decision signed on 21 July 2006 and handed down on 15 August 2006. In doing so, the Tribunal — it should be noted — made adverse findings as to the now Appellant’s credit. In part, the Tribunal accepted that the now Appellant was a citizen of India but further concluded:

The remainder of his claims to the extent that they are relevant to his claimed fear of persecution are a work of fiction.

That decision was set aside by the Federal Magistrates Court on 30 January 2007.

4                     A reconstituted Tribunal heard the application and again the decision not to grant a Protection (Class XA) Visa was affirmed. Again the Tribunal made adverse findings as to the applicant’s credit. The Federal Magistrates Court dismissed an application to review this subsequent decision of the Tribunal: SZJJC v Minister for Immigration & Citizenship [2007] FMCA 1986.

5                     The proceeding presently before this Court is an appeal against the decision of the Federal Magistrates Court. The Grounds of Appeal seek to raise three contentions, namely:

(i)         that there has been a breach of s 424A(1) and (3) of the Migration Act 1958      (Cth);

(ii)        that there has been a breach of s 430 of the 1958 Act; and

(iii)      that the Tribunal made a “jurisdictional error when the Tribunal mentioned that, ‘the Tribunal does not accept that the applicant’s business suffered losses as a result of a harm from Hindu.’ Then the Tribunal mentioned that the Tribunal has accepted that the applicant’s business has suffered losses in India and has been forced to close.”

None of these Grounds has been made out and the appeal is, accordingly, dismissed. No error has been demonstrated in respect to the reasons for decision of the learned Federal Magistrate.

6                     The Appellant appeared before the Court this afternoon unrepresented, although he did have the assistance of an interpreter.

Section 424A

7                     The first Ground of Appeal is understood to allege a breach of s 424A(1) of the Migration Act and further contends that “the information does not fall within s 424A(3)(a)”.

8                     The manner in which s 424A(1) is said to have been breached remains unspecified.

9                     Section 424A(1) requires the Tribunal to provide “clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. It is a provision which imposes a mandatory requirement and a breach of that section constitutes jurisdictional error: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [77] per McHugh J, at [173] per Kirby J, at [208] per Hayne J, 228 CLR 294; SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [13], 235 ALR 609 at 614 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

10                  The difficulties confronting the Appellant, however, seem at least twofold.

11                  First, evidence was given before the reconstituted Tribunal on 28 March 2007. Following that hearing, a letter was written to the Appellant on 4 April 2007 pursuant to s 424A(1) inviting him to comment on what was identified as “the following inconsistencies in the evidence between your statement which was provided with your protection visa application; [y]our evidence at the first Tribunal hearing (held on 20 July 2006) and your evidence at the second Tribunal hearing (held on 28 March 2007)”. That letter proceeded to detail the inconsistencies in respect to which comment was invited.

12                  But there was no response to that invitation.

13                  Second, it remains the responsibility of a litigant — including even an unrepresented litigant — to identify the grounds upon which the intervention of this Court is sought. Whatever other deficiencies may be exposed by the purported Grounds of Appeal in the present proceedings, being but broad generalisations as to alleged breaches of statutory provisions, it is considered that a Ground expressed as it is currently drafted does little to advance the interests of a litigant and certainly provides no assistance to this Court. It does not expose any appellable error.

14                  Even if the deficiencies in the Notice of Appeal be left to one side, a review of the terms of the 4 April 2007 letter and the terms of the decision of the reconstituted Tribunal does not reveal any relevant “information” which should have been brought to the Appellant’s attention and which was not referred to in the letter. In particular, it should be noted that the term “information” in s 424A(1) does not extend to “the existence of doubts, inconsistencies or the absence of evidence”: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18], 235 ALR 609 at 616. Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ there held:

[18] … if the reason why the tribunal affirmed the decision under review was the tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:

… does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc …

If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

This may have been what was envisaged by the Appellant. The grounds of the application as made to the Federal Magistrates Court similarly contended that there had been a failure to comply with s 424A and separately contended that the Tribunal had not informed “the applicant regarding the inconsistent evidence”. It may be that the Appellant sought to combine these contentions into the first Ground of Appeal. But that is speculation. Even if that was what was intended, there has been no failure to inform the Appellant of the inconsistencies relied upon and no failure to comply with s 424A.

15                  But this Court should not be left to speculate. Grounds of Appeal should be drafted in such a manner as to expose to both the respondents and to this Court the errors alleged to have been committed. An unrepresented party has no licence to not comply with O 52, r 13(2)(b) of the Federal Court Rules 1979 (Cth). That rule provides that a notice of appeal shall state “briefly, but specifically, the grounds relied upon in support of the appeal”. In Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157, 55 IPR 354 Branson J observed of this provision :

[4] A ground of appeal is a basis upon which the appellant will contend that the judgment, or a part of the judgment, should be set aside or varied by the Court in the exercise of its appellate jurisdiction. Not every grievance entertained by a party, or its legal advisors, in respect of the factual findings or legal reasoning of the primary judge will constitute a ground of appeal. Findings as to subordinate or basic facts will rarely, if ever, found a ground of appeal. Even were the Full Court to be persuaded that different factual findings of this kind should have been made, this would not of itself lead to the judgment, or part of the judgment, being set aside or varied. This result would be achieved, if at all, only if the Full Court were persuaded that an ultimate fact in issue had been wrongly determined. The same applies with respect to steps in the primary judge's process of legal reasoning. Although alleged errors with respect to findings as to subordinate or basic facts, and as to steps in a process of legal reasoning leading to an ultimate conclusion of law, may be relied upon to support a ground of appeal, they do not themselves constitute a ground of appeal.

[5] A useful practical guide is that a notice of appeal which cannot be used to provide a sensible framework for the appellant's submissions to the Full Court is almost certainly a notice of appeal which fails to comply with the requirements of O52 r13(2)(b). Neither the notice of appeal nor the document containing the revised grounds of appeal was, or could have been, so utilised in this case.

See also: Commonwealth v Evans [2004] FCA 654 at [35], 81 ALD 402; Argus Real Estate Holdings Pty Ltd v Lyristakis [2002] FCAFC 256 at [10] per Spender and Miles JJ.

16                  Although an unrepresented appellant may well seek the assistance of others and, although it is an appellant who must ultimately bear the responsibility for the content of any notice of appeal, in those circumstances where it becomes apparent that a notice of appeal has in substance been drafted by someone other than the appellant (and perhaps drafted with little regard to the facts of an appellant’s individual case) it may be appropriate that that is the person, and not the unsuccessful appellant, who should have to pay such costs as may be awarded. And it may be that costs should be awarded against that person on an indemnity basis. In the present proceedings there was no satisfactory explanation as to who it was who drafted the Notice of Appeal, the Appellant himself (not surprisingly so) having no knowledge of the specific statutory provisions to which the Notice of Appeal refers, namely s 424A (or s 430) of the 1958 Act.

17                  However, those issues may be resolved in future cases. In the present proceedings and in the absence of the alleged failure to “comply with s424A” being identified by the Appellant, or the “information” to which he refers in the first Ground of Appeal being identified, little further content can be given to this aspect of the first Ground of Appeal.  Even unconstrained by the terms of the Notice of Appeal, the Appellant was unable this afternoon to identify his complaint as against the decision of the Federal Magistrate — other than the fact that the decision of the Tribunal had been affirmed.

18                  The first Ground of Appeal also refers to “information [that] does not fall under s424A(3)(a)”. Again, the “information” referred to is not identified. It is, however, understood as being a reference to that information before the Tribunal which was “Independent Evidence”, including evidence as to a political group in India of which the Appellant claimed to have been a member (namely the “People’s War Group”).

19                  This aspect of the first Ground of Appeal also does not prevail.  Section 424A(3)(a) excludes from the operation of s 424A information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”. This provision imposes one test and does not contain two disjunctive elements; that is to say, the provision is referring to information that is not specifically about an applicant or another person (such as a witness) but is “by way of contradistinction about a class of persons of which an applicant or the other person is a member”: Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 at [64], 140 FCR 572 at 586 per Beaumont J; see also Merkel and Hely JJ at [138].

20                  A review of what is understood to be the “information” only exposes information that is “not    specifically about” theAppellant.

21                  The “information” set forth by the Tribunal contains an outline of the formation of the “People’s War Group”, its aims and ideology and an extract of a United States Department of State Country Reports on Human Rights Practices 2000. Further “information” is also set forth by the Tribunal as to freedom of religion in India and a Report from the UK Home Office on communal violence. None of this “information” refers at all to the Appellant.

22                  This class of “information” is that which falls within s 424A(3)(a): VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186, 131 FCR 80. Justice Kenny there referred to information about entry rights of non-nationals and considered that such information was “just about” a class of persons. Her Honour continued:

[50] In reaching this conclusion, it is helpful to consider other instances in which a similar question has arisen. One example is country information. It is usual for the Tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant's claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the Tribunal's decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information "just about" a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within para424A(3)(a) of the [Migration] Act …

Justice Downes agreed. His Honour considered that “Official and semi-official information contained in documents assessing conditions in countries from which persons seeking refugee status regularly come … has been held to fall within para 424A(3)(a)”: at [71].

23                  In any event, it should be noted that the Tribunal disbelieved the evidence of the now Appellant as to his association with the “People’s War Group”. The Tribunal’s relevant finding was as follows:

Having considered this evidence, the Tribunal does not accept that the applicant is, or has been, a member of the PWG. Nor does the Tribunal accept that the applicant has been a member of the All India Revolutionary Students Federation (AIRSF) or a member of the Communist Party of India.  The Tribunal does not accept that the applicant has been targeted or in any way harmed by police or Hindus generally because of his involvement or association with the PWG or that he has been targeted by the PWG because he has attempted to resign from the PWG and/or because he has attempted to join other political parties. The Tribunal also does not accept that the applicant lost a child as a result of his membership or association with the PWG, that his house was bombed or that his wife was harmed as a result of his membership/association with the PWG.

24                  The first Ground of Appeal is thus rejected.

Section 430

25                  The second Ground of Appeal asserts that “the Tribunal made error of law when it assessed the applicant’s claim and when it rejected the applicant’s claim u/s 430 of the Act not giving proper reasons and evidences”.

26                  Section 430 of the Migration Act provides as follows:

430 Refugee Review Tribunal to record its decisions etc.

(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a) sets out the decision of the Tribunal on the review; and

(b) sets out the reasons for the decision; and

(c) sets out the findings on any material questions of fact; and

(d) refers to the evidence or any other material on which the findings of fact were based.

27                  Again, this Ground of Appeal as framed fails to identify the “error of law” to which reference is being made. And, again, an independent review of the reasons for decision of the Tribunal as reconstituted fails to expose any failure to give “proper reasons” or any other departure from the requirements of s 430.

28                  Indeed, the Tribunal’s reasons set forth a detailed account of the evidence before it and a detailed account as to its “Findings and reasons” based upon the evidence. Findings were made on “material questions of fact” and reference made to the evidence upon which those findings were based. The reasons of the Tribunal, it is considered, “inform” the Appellant (and others) as to why the application for review was unsuccessful. Those reasons are not to be scrutinised in any “over-zealous” manner seeking to discern some inadequacy by the way in which the reasons have been expressed: cf Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

29                  The second Ground of Appeal is also rejected.

The Business Losses

30                  The third Ground of Appeal asserts a jurisdictional error by reason of the fact that the Tribunal “mentioned that, ‘the Tribunal does not accept that the applicant’s business suffered losses as a result of a harm from Hindu’” and thereafter the fact that the Tribunal “mentioned that the Tribunal has accepted that the applicant’s business has suffered losses in India and has been forced to close”.

31                  It is understood that this ground seeks to agitate some asserted inconsistency in the findings made by the Tribunal or, perhaps, to agitate some erroneous fact finding on the part of the Tribunal. Left to one side is the fundamental question as to whether any such inconsistency could establish “jurisdictional error”.

32                  For present purposes it is sufficient to conclude that there is no inconsistency in the findings of the Tribunal. The Tribunal accepted that the now Appellant’s business had “been forced to close” but did not accept that the business had suffered “for any of the reasons he claimed”. So much is apparent from the following portion of the “Findings and reasons” as provided by the Tribunal, namely:

The Tribunal does not accept that the applicant’s business suffered losses as a result of harm from Hindus or that Hindus will attempt to destroy his business because he is a Muslim. Whilst the Tribunal accepts that there are tensions between the Muslim and Hindu communities and incidents of communal violence in the applicant’s home city, the independent evidence referred to above indicates that Muslims comprise a significant minority in India and that the communities generally live relatively harmoniously. The Tribunal has not accepted that the applicant has given credible evidence in relation to his claims to fear harm for reasons of his religion and, in such circumstances, the Tribunal does not accept that the applicant’s business has been be [sic] targeted and he has been prevented from operating a successful business for reasons of his religion. Nor does the Tribunal accept that the applicant has been targeted by Hindus for reasons of his Muslim religion.

The Tribunal has accepted that the applicant’s business has suffered losses in India and has been forced to close. However, the Tribunal has not accepted any of the applicant’s claims and does not accept that the applicant’s business suffered for any of the reasons he claimed.

33                  The findings of fact made by the Tribunal were findings open to it, especially bearing in mind the adverse findings which had been made as to credit. If a tribunal does not believe a particular witness, no detailed reasons need be given for those adverse findings: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, 168 ALR 407. Justice McHugh there concluded:

[67] In addition, the prosecutor alleges that the Tribunal breached s430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim — a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. …

34                  The final Ground of Appeal is also rejected.

Orders

35                  The Orders of the Court are:

1.        The appeal be dismissed.

2.        The Appellant to pay the costs of the First Respondent of and incidental to the appeal.

Associate:

Dated:         6 May 2008