FEDERAL COURT OF AUSTRALIA

SZLPJ v Minister for Immigration & Citizenship [2008] FCA 1721

SZLPJ and SZLPK v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1108 of 2008

PERRAM J

3 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellants pay the costs of the first respondent in the sum of $2,400.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The appellants are citizens of India who arrived in Australia on 11 May 2007.  On 14 May 2007, the appellants lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the Minister refused the application for a protection visa on 29 May 2007.  On 20 June 2007, the appellants applied to the Refugee Review Tribunal for a review of that decision.  The Refugee Review Tribunal affirmed the delegate’s decision not to grant the protection visa on 11 October 2007.

2                     On 5 November 2007, the appellants applied to the Federal Magistrates Court, seeking in effect judicial review of the decision which had been made by the Refugee Review Tribunal.  That application came before a federal magistrate on 2 July 2008.  On that day, the learned federal magistrate entertained a number of grounds said to make out the present appellants’ right to judicial review.  Having heard argument, the learned federal magistrate dismissed the present appellants’ application and ordered them to pay the costs of the Minister fixed in the sum of $5,000.  From that determination by the federal magistrate the appellants now appeal.

3                     It is necessary to say a few brief words about the proceedings before the Refugee Review Tribunal.  The first appellant is a man who was born in India in 1962 and the second appellant is his wife, who was born in 1973.  The appellants claim, as the basis for their protection visa, that they have suffered persecution in their home state in India, Kerala.  The persecution is said to arise from the fact that they are both Hindu and also because they are supporters of the Barathya Janatha Party (“BJP”).  The Refugee Review Tribunal considered the claims made by the appellants in some detail.  Whilst it accepted certain aspects of their account it also rejected critical aspects of it.

4                     It did this, because on those critical aspects, it did not accept their version of events.  Before the Federal Magistrates Court, the appellants launched a number of attacks upon the process of reasoning of the Refugee Review Tribunal.  It was a necessary consequence of s 474 of the Migration Act 1958 (Cth) that those attacks, in order to be successful, had to characterise the errors said to be manifest in the Refugee Review Tribunal as jurisdictional errors.

5                     The grounds which were pursued before the learned federal magistrate were, in some circumstances, capable of being so characterised, and in others, not.  In this Court, the grounds of appeal were more circumscribed.  I say grounds of appeal, because it is important to emphasise that the relationship between this Court and the Federal Magistrates Court is one of an appeal in the usual sense.  Thus, it is no part of this Court’s function, in the exercise of its duties in hearing such an appeal, to identify jurisdictional error by the Federal Magistrates Court.

6                     The grounds relied upon by the appellants in this Court were as follows:

1.                  jurisdictional error;

2.                  breach of procedural fairness;

3.                  breach of natural justice.

7                     There were then appended to those three grounds of appeal the following particulars:

I claim the RRT breached section 424A(1)(2) of the Migration Act 1958 (Cth) by failing to provide particulars of information that formed the reason or part of the reason for affirming the delegate’s decision.  My RRT decision has a number of adverse information, which became the reason for my application refusal.  The reason were not put to me in writing before the RRT has made a decision.

8                     The Minister submitted, and I accept, that one aspect of that complaint is that the Tribunal impermissibly took into account certain information referred to as “country information”.  The particular part of the Tribunal’s reasons that was alleged to exhibit this difficulty was in the following terms:

The Tribunal has carefully considered the applicants’ Hindu faith and support of the BJP by voting for the Party at election time, and the Tribunal appreciates that an applicant need not prove past harm in order to establish future harm.  The Tribunal has considered the generic reports provided by the applicants and their general claims about inter-religious tensions;  the Tribunal appreciates that aalthough there have been religious tensions in India, the US Department of State Report on India (International Religious Freedom Report 2006, Released by the Bureau of Democracy, Human Rights, and Labor) notes that:

The constitution provides for freedom of religion, and the Government generally respected this right in practice.  However, the Government sometimes did not act swiftly enough to counter effectively societal attacks against religious minorities and attempts by some leaders of state and local governments to limit religious freedom.  This resulted in part from legal constraints on national government action inherent in the country’s federal structure and from shortcomings in its law enforcement and justice systems, although courts regularly upheld the constitutional provision of religious freedom.  Despite Government efforts to foster communal harmony, some extremists continued to view ineffective investigation and prosecution of attacks on religious minorities, particularly at the state and local level, as a signal that they could commit such violence with impunity, although numerous cases were in the courts at the end of the reporting period.

The applicants are from Kerala State; in 2001 the proportion of Hindu population in Kerala was recorded to be 56.2% (http://www.censusindia.net/religiondata/Summary%20Hindus.pdf).  Hindus are not a minority group in Kerala or indeed in the majority States of India.  The religious tensions and potential ill-treatment in India relate mostly to Muslims and Christians.  The religious profile of the applicants is not that of a group that could be harmed on that basis.  In consideration of the evidence as a whole, the Tribunal is not satisfied that there is a real chance that the applicants would be subjected to any ill-treatment amounting to persecution if they were to return to India, on the basis of any actual or imputed political activities /opinions (i.e. voting) or religion, or any other Convention ground.

9                     It is appropriate, as the Minister submits, to accept that the grounds of appeal raised by the appellants include an allegation that this information was taken into account in breach of the requirements of procedural fairness.  Mr Potts, in his helpful argument, submitted that the answer to this was to be found in s 424A of the Act.  Subsection (1) of that provision, requires the Tribunal, in a mandatory way, to give to the applicant:

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; …

10                  The country information averted to, in particular its reference to the Hindu population of Kerala as being 56.2%, is information which falls within subsection (1).  However, subsection (3) provides certain circumstances in which subsection (1) does not apply.  In particular, subsection (3)(a) provides that information does not have to be provided where the information:

… 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; …

11                  Mr Potts submits that the country information referred to is information which meets that requirement.  Although at one time there was a debate as to whether country information did, in fact, fall within the meaning of s 424A, I accept that that debate is now concluded.  It follows that the complaint, so far as it is based upon an alleged breach of procedural fairness constituted by a failure to provide the country information, must fail.

12                  I then turn to the second point which was raised.  In the course of its reasons, the Tribunal made reference to what had happened during the hearing before it.  It is apparent from the Tribunal’s reasons that, during the hearing, the Tribunal indicated to the wife that her application resembled another application which had been made to the Tribunal.  The Tribunal said:

The Tribunal discussed with [the second appellant] that there is another matter before the Tribunal where similar claims have been made to the ones that she had made.  The Tribunal indicated to [the second appellant] that whilst there are some differences in both her claims and those of the other applicant, there are various similar aspects.  The applicant gave evidence that she came to Australia on 11 May 2007 with her husband.  She said there was another person who got them the visa with the help of her brother.  She said that her brother knew someone who had assisted them to get the visa.  She said that person was there at the point of the airport.  She said that there were a lot of people from Kerala on the plane.  She said that she did not discuss with anyone her claims.  The Tribunal suggested to [the second appellant] the fact that another person has made similar claims, whilst this could raise concerns about the agent, it could also raise concerns about her own claims.

13                  That passage, however, cannot be read in isolation.  It must also be read with the passage which appears at page 151, of the appeal book, which is in the following terms:

As discussed in the course of the hearing, there is another matter before the Tribunal where similar claims have been made; the Tribunal has not in any way used this issue adversely to the applicants.

14                  That information, in so far as it was used in the husband’s application, is not information in terms of s 424A(3).

15                  Indeed, it appears to be information which is specifically about another person and hence is information which does not fall within the exception contained in s 424A(3).  Prima facie, therefore, one might think that s 424A(1) would apply.  However, Mr Potts submits that the words of subsection (1)(c) prevent that occurrence taking place.  The argument is that, because the Tribunal indicated that it had not in any way taken into account the similar application, s 424A(1)(a) was not enlivened.  Strictly speaking, for the reasons explained by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 615 [17], s 424A(1)(a) speaks not to the time of the Tribunal’s decision, but rather at some anterior point, at which the Tribunal turns its mind to the particulars which must be provided.  For that reason, the strict answer to the question posed by 424A(1)(a) turns to be decided upon an examination of the Tribunal’s state of mind at that anterior point. 

16                  The Minister submitted that the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 meant that the anterior time is not a single point in time, but in effect is all times which existed up until the moment of the Tribunal’s reasoning process.  That may well be so.  Ultimately the question is, what inferences can be drawn from the material which was available to the Tribunal.  Here, it seems to me to be reasonable to draw the inference that the Tribunal did not at that earlier time or those earlier times, consider that the separate application would be the reason or a part of its reason for affirming the decision that is under review.  That is, I accept that the statement about the Tribunal’s present state of mind made when it delivered its reasons is sufficient to permit the drawing of an inference that the same state of mind existed at an earlier time.

17                  For those reasons, I do not think that the argument based upon the similar application can be accepted.  There remained two further matters, which are to be noted.  First, on one view, neither of these grounds was articulated in the Federal Magistrates Court.  Generally speaking, a fresh ground may not be raised on appeal, unless some explanation is proffered as to why it was not run at first instance.  No such explanation was presently proffered.  I have dealt with the matters on their merits, but had I otherwise been of the view that the issues raised had had some merit, there would have been a real question as to whether it would have been appropriate to permit them now to be raised for the first time.  However, in the circumstances, it is not necessary to form a concluded view on that matter. 

18                  Lastly, I explained to the appellants during the course of the hearing the issues which had arisen from their notice of appeal, and in particular, I explained to them the two arguments I have just considered.  I asked them whether there was anything additional they wished to add and an argument was briefly made that the kinds of difficulties which had been experienced by them in India were such that they were not noticed in the media.  That argument does not, for legal reasons, amount to an argument based on jurisdictional error and accordingly it is not capable of affecting the outcome of the present proceeding.  It follows that, in my opinion, the present appeal must be dismissed with costs.

19                  I grant leave to the Minister to file in Court an affidavit of Alissa Maree Crittenden sworn on 3 November 2008.  The first respondent to the appeal, the Minister, applies pursuant to O 62 r 4(2)(c) for a fixed costs award of $2,400.  I am satisfied that it is appropriate to make that order.  I order the appellants to pay the first respondent’s costs of the appeal in the sum of $2,400.

Associate:

Dated:         20 November 2008