FEDERAL COURT OF AUSTRALIA

SZLMM v Minister for Immigration & Citizenship [2008] FCA 801

SZLMM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 453 of 2008

JESSUP J

22 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

1                          This is an appeal from a judgment of the Federal Magistrates Court of Australia, given on 19 March 2008, dismissing an application for judicial review remedies pursuant to the jurisdiction of that court under s 476 of the Migration Act 1958 (Cth) (“the Act”), in relation to a decision of the Refugee Review Tribunal (“the Tribunal”), signed on 29 August 2007 and handed down on 20 September 2007.  In that decision, the Tribunal affirmed an earlier decision of a delegate of the respondent Minister not to grant the appellant a Protection (Class XA) Visa, which he had sought under the Act. 

2                          According to the decision of the Tribunal, the appellant is a citizen of India who arrived in Australia on 10 April 2007.  He claimed to fear persecution as a result of a range of circumstances which befell him whilst he was living in India.  He said that the persecution was based on his political opinion, in that he was a supporter of the Bharatiya Janata Party, the BJP. 

3                          One of the circumstances upon which the appellant relied in his visa application was that persons whom he had described as NDF “goondas”, which apparently means thugs, killed his father while the two of them were travelling on a motorcycle.  The Tribunal accepted that the applicant’s father died on, or from having come off, a motorcycle, but it did not accept that relevant Convention-related factors had anything to do with that event. 

4                          One other such circumstance to which it is now convenient to refer is the appellant’s claim that he was one of a group of people who had gathered on the coast on 2 May 2003, at a place called Maraad.  As the Tribunal pointed out by reference to publicly available reports, it is a matter of record that on that day and at that place some eight innocent persons were murdered by a gang of criminals which have, in places, been described as “terrorists”.

5                          The appellant claimed to have been amongst the group of people attacked by those criminals and to have been seriously injured in the course of that attack.  He claimed that his leg was paralysed, and that he was hospitalised for two years.  After considering a number of aspects of the material and evidence presented by the appellant, the Tribunal formed the conclusion that it did not accept that he was present at, involved in, or personally affected by, the Maraad incident of 2 May 2003, or by the issues that either led to it or flowed from it.  The Tribunal accepted that the appellant had an injured leg, but it did not accept that he suffered that injury in circumstances, or for reasons, that were of any relevance to the application before it for protection under the Convention.  The Tribunal was sceptical, to say the least, about the appellant’s claim to have been hospitalised for two years, and pointed out in its reasons that he had variously made that claim and at other times said that it was over a period of two years during which he was living with a relation that he was obliged to return to the hospital for treatment from time to time. 

6                          I have mentioned these particular circumstances relied upon by the appellant at the Tribunal because of the nature of his submissions in court this morning.  The only submission he made was that he should be permitted now to produce further documentation and/or to have further time during which to obtain further documentation that would have supported his claim to the extent that it relates to those circumstances.  He told me that the documentation, to the extent that he now has it, constituted a record of his hospitalisation and, to the extent that he expects it to arrive in Australia soon, would relate to his claim to have been present on the beach at Maraad when the murders took place, and to the death of his father. 

7                          The Tribunal appears to have considered a similar application by the appellant, because it said the following in its written decision:

The Tribunal notes an implied request on the Applicant’s part to provide more evidence.  Due to the vagueness of the Applicant’s suggestions as to what the evidence might be, what its source might be and what form it would take, and also due to his vagueness as to what he had asked persons in India to try to obtain for him, the Tribunal did not consider it appropriate to grant the Applicant a specific extension of time in which to seek further material in this matter. 

However, the Tribunal duly informed the applicant that in this matter he was entitled to submit any material he wished to submit in support of his application, right up until the handing down of a decision (of which he would be given appropriate notice).  The Tribunal duly informed him that it would consider recalling any signed decision up until handing down, and reopening the matter for fresh consideration in the event of receiving any such material. 

8                          As I read the grounds upon which the appellant relied in his application in the Federal Magistrates Court, it was not then suggested by him that the Tribunal erred in point of jurisdiction by declining to allow him further time in order to obtain the documents to which he referred.  However, in the reasons for judgment of the Federal Magistrate, his Honour said:

The Applicant did not file any written submissions at that stage.  He attended Court at the hearing on 30^th January 2008 and said that when he was at the Refugee Review Tribunal he was not able to present to the RRT his problems. He said it was emotionally and mentally disturbing.  He said he was not able to present what he wanted to say there.  He said he was asked by the RRT the names of the people who were murdered there, meaning at Maraad.  He was not able to present them because of his emotional condition.  The Applicant admitted that he had not given this evidence to the Refugee Review Tribunal, and I informed him that the Court had no jurisdiction to consider fresh evidence.

The Applicant went on to say that the situation back at home, meaning back in India, was such that in relation to what happened at the Maraad, some of the culprits had been released from prison and were released just two weeks ago.  This again was evidence that I indicated to the Applicant could not be taken into consideration as it was not evidence before the Tribunal.  The Applicant complained that he was feeling giddy, so I adjourned the proceedings briefly.

Upon the hearing restarting the Applicant indicated that he wished to present further evidence and complained of giddiness.  I took a break.  The Applicant said he was not able to say what he wanted to say.  I informed the Applicant that I was happy for him to remain seated during the hearing if that would assist him.  The Applicant, having complained of giddiness, I allowed him the opportunity to provide any further written submission that he wished to make by Wednesday, 13^th February.  I granted leave to the First Respondent, being the Minister, to file and serve any submissions in response to the Applicant’s written submissions by Thursday, 21^st February.

His Honour set out the written submissions that were subsequently filed on behalf of the appellant.  As I read them, they made no reference to the Tribunal having erred in point of jurisdiction by refusing to provide the appellant with an opportunity to present further documentary evidence before it. 

9                          The appellant’s grounds of appeal in this court, to which I shall return, give no indication of the only point which he has sought to raise this morning.  As I understand it, that point, expressed as best it may be, could have two aspects.  The first aspect could be that the Tribunal was guilty of a constructive failure to exercise jurisdiction by failing to give him the time which he sought to produce further documents.  The second aspect could be an application made here and now for this court to defer the further hearing of this appeal so that the documents could be produced to it. 

10                        It is important to appreciate that it is only the Refugee Review Tribunal that has the statutory function of reconsidering the primary question whether a person in the position of the appellant has a well-founded fear of persecution by reason of his or her political opinion or other circumstances referred to in the Refugees Convention.  The function of the Federal Magistrates Court on an application of the kind made by the appellant is not to review the merits of the decision of the Tribunal, but only to consider whether the Tribunal exceeded or failed fully to exercise its jurisdiction.  There is nothing in the material which would suggest that the Tribunal erred in either of those ways to the extent that the appellant did seek from the Tribunal an opportunity to provide further evidence to it.  I consider that the Tribunal dealt with it wholly within the bounds of its jurisdiction and, if I may so, with respect, entirely appropriately.

11                        To the extent that the appellant should now be taken as asking for these proceedings to be adjourned so that he might put further documents before this court, like the Federal Magistrate in the passages to which I have referred, I can only say that the reception of new or further primary evidence is not a matter which this court ought to consider.  Only if such evidence went to demonstrate that the Tribunal had erred in point of jurisdiction might this court consider receiving it.  It appears that the purpose of the appellant, in seeking an opportunity to produce this evidence, is to improve the evidentiary foundation of his case on the merits before the Tribunal rather than to propose that the Tribunal made a jurisdictional error.  That is not a purpose which would sustain the receipt of material of that kind in this court.

12                        There is another point.  It is not this court that has the primary jurisdiction to deal with jurisdictional errors on the part of the Tribunal.  The court with that function was the Federal Magistrates Court.  I am not at all persuaded that the appellant put before his Honour a request in the same specific terms as he now seeks to make here, but, even assuming that to have been done, and assuming that the request was refused, it is not as thought this court is in the position of simply reconsidering that request as though it had never been made before.  The appellate jurisdiction of this court exists for the purpose of correcting error on the part of the Federal Magistrates Court.  Neither the appellant’s Notice of Appeal, nor anything he has put before me this morning, provides any support for the proposition that the Federal Magistrate erred in relation to the matter of the further evidence which the appellant seeks to obtain. 

13                        For those reasons I propose to dismiss the appeal, but before doing so, I think it is both proper and desirable that I draw attention to something which the Federal Magistrate said in paragraph 29 of his Honour’s reasons.  That paragraph is to be understood in the context of the appellant having filed and relied upon two sets of written submissions before his Honour.  The Federal Magistrate said:

There is, as can been seen, a considerable similarity between the two sets of submissions.  I would also comment that the submissions bear little if any relation to the grounds set out in the Applicant’s application.  I would further comment that the matters referred to in the two written submissions appear to be part of standard form submissions which also appear as grounds of an amended application which are currently being circulated.  It is perhaps coincidental that I have seen these grounds now three times over the past two days in applications before me.  Not all of them are relevant to the Applicant’s individual circumstances and some of them are difficult to comprehend.  However I will deal with the grounds in the application and the matters in each of the submissions in turn.

14                        Over the succeeding 28 paragraphs of his Honour’s reasons, he dealt carefully and comprehensively with everything which had been put in the grounds on which the appellant relied in his application in that court and in the two sets of submissions which had been filed on his behalf.  Nothing which the appellant has said today, and no document which he has filed in this court, even attempts to join issue with any of the Federal Magistrate’s reasons or with the way in which his Honour disposed of the application before him.

15                        His Honour appeared to have been of the view that there was cause to suspect a certain cynicism in the way some applications for judicial review were presented and conducted in the Federal Magistrates Court.  If that was the view taken by his Honour, I can only say that the circumstances of the present case would give me ample reason to share it. 

16                        That brings me to the appellant’s Notice of Appeal in this court.  He relied upon three grounds, namely:

2.      The single Judge of the Federal Magistrate Court in his Honours judgement delivered on 19 March 2008 failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903.

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 Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.

The grounds themselves are manifestly unhelpful in identifying what, if anything is said to have been wrong with the way in which the Federal Magistrate disposed of the application before him.  A reader of the grounds is left having to attempt to divine what kind of error might possibly be implied by grounds expressed in such general and clearly unhelpful terms.  The most specific of the three grounds relied upon is the third in which the appellant calls up the authority of the Full Court in Randhawa.  The difficulty is that the proposition for which that case is authority relates to the matter of relocation.  That is to say, it relates to circumstances in which the Tribunal has held that an applicant has, or possibly may have, a well-founded fear of persecution in a particular area or locality of a country, but could not be said to be outside that country by reason of that fear because of the reasonable prospect of him of her changing the location of his or her residence within the boundaries of that country.

17                        Quite recently, in SZJJC v Minister for Immigration and Citizenship [2008] FCA 614, Flick J had cause to make some critical observations about pro forma grounds of appeal relied upon in this court which were barely related to the facts of the case and which were quite unhelpful in disclosing alleged error.  His Honour said:

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 this 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…

His Honour set out the provisions which were relevant, the provisions to which the Notice of Appeal had referred in that case. 

18                        I would wish to associate myself with his Honour’s observations, and to point out that the Notice of Appeal in the present case is identical to the notice of appeal in another matter which came before me this week, SZLPY v Minister for Immigration and Citizenship,and is identical to the first three grounds of a further notice which also came before me this week, SZLSK v Minister for Immigration and Citizenship.  I express these concerns not, or at least not principally, out of frustration that the court should be required to deal with proceedings which are founded upon manifestly inadequate documentation, and not even because of the needless expense which proceedings based upon such documentation doubtless occasion for the respondents to these appeals.  My principal reason for expressing these concerns is that court documentation of this kind makes it much more difficult for the court to do justice in individual cases, in the interests of litigants such as the present appellant.  It may be that, due to the quality of persons who constitute the Refugee Review Tribunal and, if I may say so with the greatest respect, of those who constitute the Federal Magistrates Court, it will often be difficult to formulate grounds of application, or grounds of appeal.  But that is no reason, in my view, for the use of documents which serve only to cloud the issues and to obscure any possible legitimate points of jurisdiction which an appellant may have.  I am concerned that there may be situations – I do not believe that the present is even close to being one of them –in which legitimate points might be lost in the unedifying mists of standard form documentation, such as the present Notice of Appeal, and such as the submissions about which the Federal Magistrate expressed his concerns in the present case. 

19                        However, as I said, for reasons made clear earlier, the present appeal must be dismissed. 

Associate:

Dated:         29 May 2008