FEDERAL COURT OF AUSTRALIA

SZKPH v Minister for Immigration & Citizenship [2008] FCA 707

MIGRATION – leave to raise new ground of appeal refused – relocation within country – no failure to consider claims – no denial of procedural fairness – country information not “about” the Appellant – pro forma grounds of appeal

Migration Act 1958 (Cth) ss 424A, 430, 476

Kopalapillai v Minister for Immigration & Multicultural Affairs (1986) 86 FCR 547 followed

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 followed

Minister for Immigration & Citizenship v SZHXF [2008] FCAFC 36 followed

Muin v Refugee Review Tribunal [2002] HCA 30, 76 ALJR 966 cited

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 followed

SZATV v Minister for Immigration & Citizenship [2007] HCA 40, 237 ALR 634 followed

SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 followed

SZIBR v Minister for Immigration & Citizenship [2008] FCA 502 followed

SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 followed

SZIED v Minister for Immigration & Citizenship [2007] FCA 1347 followed

SZINP v Minister for Immigration & Citizenship [2007] FCA 1747 cited

SZKDY v Minister for Immigration & Citizenship [2007] FCA 1667 followed

SZKPH v Minister for Immigration & Citizenship [2007] FMCA 1962 cited

SZJMU v Minister for Immigration & Citizenship [2007] FCA 1344 followed

VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 followed

SZKPH v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2479 of 2007

FLICK J

20 MAY 2008

SYDNEY

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.

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

REASONS FOR JUDGMENT

1                     The Appellant is a citizen of India who arrived in Australia on 27 October 2006. On 29 November 2006 he applied for a Protection (Class XA) Visa.

2                     A delegate of the Minister refused the application and the now Appellant sought review by the Refugee Review Tribunal. That Tribunal affirmed the delegate’s decision by its decision signed on 26 March 2007.

3                     The Federal Magistrates Court has, in turn, dismissed an application seeking review of the Tribunal’s decision: SZKPH v Minister for Immigration & Citizenship [2007] FMCA 1962. The Appellant now appeals to this Court. He appeared before the Court yesterday unrepresented, albeit with the assistance of an interpreter. Previously filed with the Court were written submissions by both the Appellant and the Respondent Minister.

4                     The Notice of Appeal sets forth ten purported Grounds of Appeal, although a number of those grounds raise substantially the same issues. None of the grounds has been made out and the appeal is dismissed.

Legal and Factual Error?

5                     The first two grounds assert that the Federal Magistrate failed to find that the Tribunal had committed error of law, jurisdictional error, factual error, and denied the now Appellant procedural fairness.

6                     The nature of those errors is not further developed. A review of the decision of the Tribunal does not expose any error. In the absence of any alleged error being more specifically identified in the Notice of Appeal, these grounds must be dismissed. 

7                     One ground, however, asserts that the Federal Magistrate failed to apply “the principles laid down by the full court of Federal Court in Randhawa v The Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437”.

8                     Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 was a decision of the Full Court which concerned whether a person was a refugee who could reasonably relocate within his own country. Black CJ, at 440–1, concluded in part as follows:

The appellant's primary argument must be rejected. Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.

Whitlam J agreed. The conclusions of the Chief Justice were further considered by the High Court in SZATV v Minister for Immigration & Citizenship [2007] HCA 40 at [10], 237 ALR 634 at 636 per Gummow, Hayne and Crennan JJ. Their Honours there accepted that the basic test is whether it is reasonable, in the sense of being practicable, for a claimant to relocate to a region where objectively there is no appreciable risk of the occurrence of the feared persecution.

9                     In the circumstances of the present proceedings, the Tribunal referred to the business of the father of the Appellant, a sweet making business, and the desire of the Appellant to revive and expand that business. The Tribunal went on to conclude that the business could be relocated to another part of India. It relevantly found:

The applicant described the manufacturing process of the lollies: sugar; glucose, boiling water, syrup and dye. Presumably these lollies could be made in anywhere, which the applicant acknowledged during the hearing. The Tribunal considers it implausible that the CPM would seek to locate him and destroy his business if he moved it to another state. The Tribunal suggested to the applicant that he could return to Gujarat, where he had lived for nearly 10 years, and start a business there. The Tribunal pointed out to the applicant that the CPM had not polled well in the recent elections in Gujarat, while the BJP had done well. The Tribunal told the applicant that it would therefore appear that he could expect to be supported well in Gujarat. The applicant said that the different language would be an issue and also that it would be too expensive to relocate because of different marketing and distribution practices. However, the Tribunal considers that language a fairly limited problem given that the applicant told the Tribunal that he lived there for nearly 10 years. Also, the lolly business closed when his father passed away in 2003. The applicant would have significant costs in re-establishing the business in Kerala as well. The Tribunal considers that it could reasonably be expected that the applicant could relocate to another part of India, for example Gujurat. From the independent information already referred to above, it appears that Indian citizens have the freedom to relocate from one area of India to another. The Tribunal does not accept the applicant’s claim that the CPM would prevent him moving the lolly business from Kerala.  The Tribunal considers that, even if it were satisfied that the applicant was in fear of persecution, the applicant does not have a well founded fear of persecution in relation to that country as a whole. The Tribunal cannot be satisfied that the applicant’s fear of persecution is well-founded.

10                  The test as to whether it is “reasonable” for an applicant to relocate requires that “the evaluation be proper, realistic and fair and all the circumstances be taken into account”: SZIED v Minister for Immigration & Citizenship [2007] FCA 1347 at [52].

11                  It is considered that there is no basis in the present proceedings to reach any conclusion other than that the evaluation of the now Appellant’s claim by the Tribunal was “proper, realistic and fair”. The alleged error on the part of the Tribunal in making the findings it made was not further identified other than a submission made orally by the Appellant yesterday that he could not relocate within India because of language limitations. But that was a matter addressed by the Tribunal and resolved against the Appellant. Any further complaint as to the decision in fact reached by the Tribunal, it is considered, is a complaint as to the merits of the decision reached. Compare: SZKDY v Minister for Immigration & Citizenship [2007] FCA 1667 at [8] per Gyles J.

12                  It should further be noted that this ground was not a ground raised for resolution before the Federal Magistrate. No satisfactory explanation has been provided for not previously raising it. Although this Court has a discretion to permit a new ground to be raised on appeal, there should generally be an adequate explanation for not raising the ground before the Federal Magistrate (SZIBR v Minister for Immigration & Citizenship [2008] FCA 502 at [38]–[41]) and leave should only be granted if it is expedient in the interests of justice to do so (VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46]–[48]). In the present proceedings, the only explanation provided yesterday was that this particular ground was inserted consequent upon a meeting between the Appellant and a migration agent.

13                  Leave to raise reliance upon Randhawa is refused. It is a ground which has no substance.

Failure to Consider the Claims Being Advanced?

14                  A number of grounds assert that the Tribunal failed to consider the claims being advanced. One ground thus asserts that the Tribunal’s decision failed to take “into account the full gravity of my circumstances and consequences of the claim.” Another ground separately asserts that the “Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicant’s claim”. Other grounds refer to the “immense and intimidating pressure” to which the now Appellant was exposed and assert a failure on the part of the Tribunal to consider those matters.

15                  A number of answers may be given for rejecting these grounds.

16                  First, to the extent that the grounds assert a failure to take into account considerations which are said to be relevant to the decision that was made, they are not considerations which the Tribunal was bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J.

17                  Second, the grounds are in substance an impermissible attempt to propel both the Federal Magistrate and this Court into a review of the factual merits of the decision of the Tribunal. It is the Tribunal which has been entrusted by the legislature with the task of resolving factual matters: Kopalapillai v Minister for Immigration & Multicultural Affairs (1986) 86 FCR 547 at 558. The task of the Federal Magistrates Court is that conferred by s 476 of the Migration Act 1958 (Cth). The weight to be given to particular aspects of the claim being advanced is generally a matter for the Tribunal alone: Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J.

18                  Third, there is no obligation imposed upon the Refugee Review Tribunal to refer in its reasons to every piece of evidence that was before it: SZEHN v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1389 at [58] per Lindgren J. A failure on the part of the Tribunal to refer to each individual claim or to a particular aspect of the evidence in support of a claim being advanced does not necessarily lead to a conclusion that the claim or that piece of evidence has not been considered.

19                  Finally, and even if the Appellant could overcome the former obstacles to his success, the present Grounds of Appeal should be dismissed upon the basis that the Tribunal did in fact consider the claims being advanced by the now Appellant. There simply has been no failure on the part of the Tribunal to consider either the entirety of the claims being advanced by the now Appellant or, more specifically, the matters now relied upon in his Grounds of Appeal.

Denial of Procedural Fairness?

20                  One Ground of Appeal asserts a failure to accord procedural fairness. Reliance is placed upon Muin v Refugee Review Tribunal [2002] HCA 30, 76 ALJR 966, a decision which the Appellant maintains is “identical” to his own.

21                  The Notice of Appeal goes on to state:

… My case is identical to Muin contending a want of procedural fairness in two respects. Muin had been misled into believing that the Tribunal had read some information, which had been in part B documents; and the Tribunal had not drawn to his attention some material adverse to his claims so as to enable him to comment upon them. It is the first of those contentions, which is relevant here.

22                  In Muin the applicants had been led to believe that the Tribunal had certain documents — called the Part B documents — which had been before the delegate. Those documents were not before the Tribunal. A majority of the High Court concluded that there had been a denial of procedural fairness. Hayne J referred to an agreed statement of facts and concluded:

[256] … The consequence of what has been agreed between the parties to each of the present actions is that each plaintiff was led to believe, by what the Tribunal said, that it had material relevant to that plaintiff's claim which it did not.

[257] The agreed facts are silent about whether the Tribunal was aware of the information and opinions contained in the PtB documents. It may have been, but more importantly, it may not. It follows, therefore, that in each case, the plaintiff was denied procedural fairness. Neither plaintiff was given an opportunity to place before the Tribunal the material and submissions which, on the agreed facts, it is accepted that he or she would have submitted if not mistaken about what was before the Tribunal. Moreover, it also follows from the parties’ agreement that each plaintiff would have made further submissions and sought to adduce further evidence that the Tribunal did not comply with the statutory provisions governing its conduct of the reviews of the plaintiffs' cases. It did not give each plaintiff the opportunity to make the submissions or give the evidence which the plaintiff wished to make and give. For these reasons, Question 1 of the questions reserved should, in each case, be answered “yes”.

Gummow J (at [171]) and Kirby J (at [194]) agreed with Hayne J. Gaudron J also agreed that there had been a denial of procedural fairness.

23                  One difficulty confronting the Appellant in the present proceedings is not the principle for which Muin is authority; the Appellant’s difficulty is the application of Muin to the circumstances of the present appeal.

24                  The material before the delegate is set forth in his decision dated 11 December 2006. The material that was before the Tribunal is also set forth in its reasons for decision. There was no identification by the Appellant of those documents which he contended should have been before the Tribunal but were not. Generalised assertions as to a denial of procedural fairness and a citation of the decision in Muin does nothing to assist this Court in the resolution of a challenge to a decision of the Tribunal: SZJMU v Minister for Immigration & Citizenship [2007] FCA 1344 at [16] per Mansfield J.

25                  A further difficulty confronting the Appellant in his reliance upon Muin is the fact that this ground was also not raised before the Federal Magistrate for resolution. Again, it is a ground apparently inserted consequent upon the meeting with the migration agent. Again, leave to raise this as a Ground of Appeal is refused.

26                  A further aspect of procedural fairness potentially arises by reason of an alleged failure to comply with s 424A(1) of the Migration Act 1958 (Cth). No Ground of Appeal seems to raise any such alleged non-compliance. But that was a ground raised before the Federal Magistrate and rejected. Although not raised in the Notice of Appeal, the contention emerged in the written Outline of Submissions as filed in this Court by the Appellant. Those submissions contended that there had been a breach of s 424A(1) by the non-provision to the now Appellant of “the country information it had about Kerala and India”. As explained by the Federal Magistrate, s 424A(3) provides that such information does not fall within s 424A(1). That “information”, as is apparent from the reasons of the Tribunal, was not “about” the now Appellant: SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 at [23]–[26] per Tamberlin, Finn and Besanko JJ; Minister for Immigration & Citizenship v SZHXF [2008] FCAFC 36 at [18]–[22] per Tamberlin, Gyles and Stone JJ.

27                  Similarly, the written submissions also assert that there has been non-compliance with s 430 of the 1958 Act. An instance provided by those submissions is the alleged failure on the part of the Tribunal to make a “finding as to the extent or nature of persecution suffered”by the Appellant. But there was such a finding, albeit one adverse to the Appellant. The Tribunal concluded that it was “not satisfied that, if the applicant returns to India now or in the reasonably foreseeable future, there is a real chance that he will be persecuted for reasons of his real or imputed political beliefs”. That finding follows from the assessment of the Appellant’s claims as made by the Tribunal. There has been no failure to comply with s 430.

28                  There has been no denial of procedural fairness.

The Wrong Test

29                  The final Ground of Appeal asserts that the Tribunal applied “the wrong test”. It is alleged that the Tribunal placed a “high … onus of proof [upon] the applicant” and “fail[ed] to give the applicant the benefit of the doubt”.

30                  The difficulty confronting the Appellant in respect to this ground is the simple fact that the Tribunal just did not believe the evidence he was giving. The Tribunal set forth the evidence given by the now Appellant and concluded in part as follows:

The Tribunal considers that the applicant has concocted claims of persecution for the purpose of the application.

The applicant changed his claims in giving evidence during the hearing. For example, when the Tribunal was asking him about the bribes that his father had to pay the local officials, first he claimed that they came to his father’s business to collect them. Later he said that his father took the money to the party office where it was shared by everyone present. The Tribunal does not accept that the applicant’s father had to bribe authorities to allow his business to run smoothly.

At times, the applicant appeared to be making up his story as he told it to the Tribunal. For example, when the Tribunal asked the applicant about interviewing and choosing prospective employees for the lolly business, he hesitated before stating that 10 employees were chosen; five were ex-employees from his father’s business and five were new employees. When asked about how the ex-employees were contacted some three years after his father’s business had closed down, the applicant said that they all lived close to the factory. The Tribunal does not accept that any employees were interviewed by the applicant or his sister with the prospect of reviving the lolly business.

It is considered that the Tribunal’s reasons and findings disclose nothing other than an assessment of the evidence being advanced by the now Appellant. No instance can be found where the Tribunal imposed any “high” onus of proof upon the now Appellant.

31                  The final ground is also rejected.

Pro Forma Grounds of Appeal

32                  Reference should be made to what may be a not inconsiderable problem confronting both litigants and this Court.

33                  Previous appeals coming before this Court have raised Grounds of Appeal in precisely the same terms as have been employed in other proceedings.

34                  In the present proceedings, a number of the Grounds of Appeal are in substantially the same terms as were before Justice Collier in SZINP v Minister for Immigration & Citizenship [2007] FCA 1747. Those grounds in the present appeal provided (without alteration):

3. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.

4. The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down by the full court of Federal Court in Randhawa v The Minister for Immigration Local Government and Ethnic Afairs (1994) 52 FCR 437.

5. The Federal Magistrate failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim.

…

11. The Tribunal applied the wrong test:

Particulars:

a) The Tribunal applied the wrong test, by requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was , in fact , placing high an onus of proof an the applicant and failing to give the applicant the benefit of the doubt.

b) The Tribunal left out individual elements of the applicant’s claims and tested whether they individually amounted to persecution rather than look at the claim as a whole to determine whether the claim so considered amount to persecution.

The grounds as they were expressed in the proceedings before Collier J differed to the extent that those grounds did not refer to the Magistrate as being “learned” and did not refer to the decision in Randhawa as being a decision of the Full Court or the citation to that decision. There is not much other difference between these grounds in the present proceedings and those before Collier J.

35                  It is stating the obvious to acknowledge that Grounds of Appeal must be drafted by reference to the individual decision the subject of appeal and with specific reference to the arguments and issues resolved by the Federal Magistrates Court. The indiscriminate duplication of grounds imported from other proceedings, without consideration to the particular decision being appealed from, is only productive of grounds coming before this Court without any apparent relevance to the issues to be ventilated and of unrepresented litigants not being able to provide any further explanation as to the legal or factual issues to which the ground is said to be relevant.

36                  An instance of such indiscriminate repetition of grounds advanced in other proceedings into the circumstances of the present appeal is, it is considered, exposed by the Appellant’s reliance upon the decision in Muin. The documents which were not before the Tribunal in that case and which occasioned the denial of procedural fairness had been there identified as “the PtB documents”. But there were no comparable documents identified in the present appeal which were said to have been not before the Tribunal and thereby denying the now Appellant of procedural fairness.

37                  Reliance upon Randhawa may provide a further instance. The ground now relied upon in this Court did not find its counterpart in any of the grounds relied upon before the Federal Magistrate and was not mentioned in the applicant’s written submissionsas filed with that Court.

38                  Other parallels may also be discerned from a comparison between the grounds raised in the present proceedings and those before Collier J.

Orders

39                  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:         20 May 2008