FEDERAL COURT OF AUSTRALIA

SZJHE v Minister for Immigration & Citizenship [2008] FCA 1771

MIGRATION – review sought of Tribunal’s decision – no error alleged against decision of Federal Magistrate – appeal dismissed – impermissible merits review – bad faith – application dismissed

Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394, 66 ATR 225 followed

NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713, 195 ALR 207 followed

NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730, 130 FCR 210 followed

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

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, 168 ALR 407 applied

SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 distinguished

Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210 applied

SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 distinguished

SBAP v Refugee Review Tribunal [2002] FCA 590 followed

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361, 194 ALR 749 followed

SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 followed

SZHAH v Minister for Immigration & Multicultural Affairs [2006] FCA 1012 followed

SZJHE v Minister for Immigration [2008] FMCA 1299 cited

SZJVA v Minister for Immigration & Citizenship [2008] FCA 1631 followed

SZLZM v Minister for Immigration & Citizenship [2008] FCA 1263 followed

SZJHE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD 1565 of 2008

FLICK J

26 NOVEMBER 2008

SYDNEY

THE ORDERS OF THE COURT ARE:

1.             The Notice of Appeal as filed on 3 October 2008 is dismissed.

2.             The Appellant is to pay the costs of the First Respondent.

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 present Appellant claims to be a citizen of India and arrived in Australia on 14 February 2006.

2                     He applied to the Department of Immigration and Multicultural and Indigenous Affairs for a Protection (Class XA) visa on 23 March 2006. On 15 May 2006 a delegate refused to grant the application and the Refugee Review Tribunal affirmed the delegate’s decision on 31 July 2006. The Federal Magistrates Court set aside the delegate’s decision on 17 July 2007 and remitted the matter to the Tribunal to be determined according to law.

3                     A differently constituted Tribunal affirmed the delegate’s decision on 30 November 2007. The Tribunal “did not find the applicant to be credible on some key aspects of his claims”. Instances were provided “of the inconsistencies, contradictions and implausibility that lead the Tribunal to conclude that the applicant is not a reliable witness in relation to certain aspects of his claims”. On 19 August 2008 the Federal Magistrates Court dismissed an application for review: SZJHE v Minister for Immigration [2008] FMCA 1299.

4                     The Appellant now appeals to this Court. He appeared unrepresented during the course of the hearing on 24 November 2008, although he did have the benefit of an interpreter. He had also filed on 19 November 2008 a written Outline of Submissions.

5                     The Grounds of Appeal to this Court (without alteration) are expressed as follows:

1.          The Refugee Review Tribunal failed to establish a connection between my claim of persecution and the country information about the LTTE under the Migration Act:

             Particulars

A.        The Tribunal failed to establish a connection between my claim of persecution and the country information about the LTTE under the Migration Act that:

i)        the authority of India treated the LTTE as a terrorist organization and the members and supporters of this organization are the enemy of the nation. They were in the government’s wanted list.

1.          The Refugee Review Tribunal made the decision in bad faith:

             Particulars

A.        The Tribunal made the decision in bad faith by making the following comment that:

i)          the Tribunal did not find the applicant to be credible on some key aspects of his claims; and

ii)         the Tribunal did not accept that the applicant was of adverse interest to the Indian authorities.

2.          The decision of the Refugee Review Tribunal did not give any weight to the response that I lodged under s424A of the Migration Act:

             Particulars

A.        The Tribunal asked me to provide a response for couples of things and I promptly response of those things that the Tribunal came into my attention. However the Tribunal did not give any weight to those documents and just came into conclusion whatever had to its mind.

These Grounds of Appeal are a substantial repetition of the grounds as advanced before the Federal Magistrates Court. The Appellant’s written submissions also substantially repeat that which is otherwise set forth in the Grounds of Appeal.

6                     The purported “Grounds”, it may be noted, only direct attention to perceived deficiencies in the decision of the Tribunal. No ground is directed to any appellable error alleged to have been made by the Federal Magistrates Court.

7                     The appeal should be dismissed on that basis alone. Such a fundamental deficiency in a notice of appeal is not a mere matter of form; no original jurisdiction is vested in this Court to review errors perceived to have been committed by the Tribunal: SZLZM v Minister for Immigration & Citizenship [2008] FCA 1263. In Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210, Finn, Marshall and Goldberg JJ likewise emphasised the appellate role of this Court. Their Honours were there addressing an appeal which did at least allege error on the part of the Federal Magistrate, but they did go on to make the following observations as to attempts to review in this Court the reasons of the Tribunal:

[10] We granted leave at the commencement of the hearing to amend the grounds of appeal better to reflect the written submissions the appellant had filed in the appeal. The two errors now ascribed [to] her Honour’s decision are that she failed to find (i) that the Tribunal did not address whether by reason of all of the claims made by the appellant, including those relating to events prior to 1997, the appellant had a well-founded fear of persecution for a Convention reason; and (ii) that the Tribunal erred in asking whether all Tamils would have such a well-founded fear. We should state at the outset that we do not consider there is substance in either ground. We would add that much of the appellant’s submissions were directed to the proposition that the Tribunal had made errors in the way it had considered the evidence and issues before it. Although this occurred under the rubric of a consideration of the primary judge’s reasons it was of little assistance in understanding why it was said that the primary judge fell into error. The Court wishes to emphasise that an appeal to the Full Court in a refugee matter should not be taken as an occasion to re-consider the Tribunal’s reasons as distinct from considering the primary judge’s reasons.

8                     Even if the Notice of Appeal had been construed as a contention that the Federal Magistrates Court erred in not concluding that the Tribunal had committed one or other of the errors alleged, the appeal still would have been dismissed.

9                     Any failure on the part of the Tribunal to “establish a connection” between the claim of persecution and the country information is essentially either a challenge to the factual conclusions as made by the Tribunal or a challenge to its reasoning process. On either basis, no jurisdictional error is established by any such failure.

10                  The Tribunal addressed the claim as made by the now Appellant as to the LTTE and made a finding against him. The claim as expressed in the original application made to the Department stated in part as follows (without alteration):

In middle of October 2005, my Sri Lankan business contact had been arrested by the Sri Lankan Police on a tip off given by the Customs officers in Colombo by suspecting that the goods might send to LTTE. Same day my Colombo business friend’s brother telephoned me to my office at Chennai and related to me how his brother was arrested by the police in Colombo. He said that the police arrested his brother as they have found that the material I exported to him to make uniforms for LTTE and the medicine were used by the LTTE to treat their cadres who injured due to armed attacks on Sri Lankan Defence Forces. The person who telephoned said that I should be careful because the Tamil Nadu Police might come to question me over the supplies. According to what I heard the officers who had opened some of the large packages at Colombo Customs had informed the Colombo Police to check as to who was receiving these goods as they were suspicious about the Colombo businessman’s activities for some time

The Tribunal rejected the claim. It rejected the now Appellant’s claims on the basis of adverse findings as to credibility. It concluded:

Overall, the above matters lead the Tribunal to reject the applicant’s claims that he was arrested, detained and assaulted on suspicion of being an LTTE supporter. Given that the Tribunal does not accept that the applicant was arrested as claimed, the Tribunal does not accept that the applicant is of adverse interest to the Indian authorities. The Tribunal is not satisfied that the applicant is on any ‘wanted list’ in India. The Tribunal is not satisfied that the applicant’s business was affected, as claimed. There is no credible evidence on which the Tribunal could find the applicant stands at risk of suffering serious harm in the reasonably foreseeable future if he returns to India.

No case was sought to be advanced that the claim had not been addressed. The conclusion of the Tribunal was a finding of fact disclosing no error, let alone jurisdictional error.

11                  The contention that the Tribunal made a decision in “bad faith” is likewise to be rejected. An allegation of “bad faith” is serious (SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397) and cases in which “bad faith” will be established “will be rare and extreme and claims of bad faith must be clearly particularised”: Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394 at [32], 66 ATR 225. In NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730, 130 FCR 210 Gyles J reviewed the authorities and concluded as follows as to that which has to be established to make out “bad faith”:

[24] Bad faith cannot be constituted by recklessness in the sense of negligence, no matter how gross the negligence. A tribunal member cannot blunder into bad faith, no matter how stupid and careless the tribunal member is, any more than a person can blunder into deceit… What is required to make out this case is to find that the tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him — tossing a coin without reading the file, allowing in every third applicant, or allowing in applicants from various countries in rotation might be examples.

This decision has since been followed by Finn J in SZHAH v Minister for Immigration & Multicultural Affairs [2006] FCA 1012 at [17]. “The presence or absence of honesty will often be critical”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43], 194 ALR 749 at 756 per Tamberlin, Mansfield and Jacobson JJ. “Bad faith”, Allsop J has further observed, “is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question”: NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24], 195 ALR 207 at 215. His Honour there rejected a submission that “enabled objective bad faith to be found without the need for personal fault on the part of the decision-maker”. Similarly, in SBAP v Refugee Review Tribunal [2002] FCA 590 at [49], Heerey J observed that “bad faith is a serious matter involving personal fault on the part of the decision-maker going beyond the errors of fact or law which are inevitable in any such process. As such, it is an allegation not to be lightly made and must be clearly alleged and proved”. See also: SZJVA v Minister for Immigration & Citizenship [2008] FCA 1631 at [47] per McKerracher J.

12                  An instance of a decision of the Tribunal not having been made in good faith is provided by SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547. It was there concluded that the lack of good faith was established because the Tribunal had looked for reasons to reject the claim being advanced. Mansfield J there observed:

[36] I am mindful that a finding that a decision of the Tribunal was not made in good faith will be exceptional. However, in this matter I have concluded that the Tribunal’s decision was not made in good faith. I have reached that conclusion by inference from my consideration of the Tribunal’s reasons as a whole, and not by taking any particular part of its reasons in isolation. I will not repeat the analysis of the Tribunal’s reasons discussed above. In my judgment, its reasons go beyond the Tribunal making findings of fact or making observations which involve it making errors of fact or law, or simply reaching views which lack logic or which are wrong. The firm persuasion which I hold is that the Tribunal approached its review of the applicant’s claims on the basis that it should look for reasons why it could reject those claims. In other words, in my judgment, its reasons overall show that it did not address the applicant’s claims by asking whether he has a well-founded fear of persecution for a Convention reason, but in substance by asking whether there was evidence which would enable it to reject the applicant’s claims. That conclusion is reached notwithstanding that in its consideration of the definition of “refugee” it has referred to the relevant decisions of the High Court and notwithstanding that, at the commencement of the “findings and reasons” section of its decision the Tribunal quotes the observations of Gummow and Hayne JJ in Abebe [v Commonwealth (1999) 197 CLR 510] at 577–578 set out in [29] above. At no point in its reasons thereafter do those considerations appear to attract any attention. Instead, each of the factors upon which the Tribunal relied to reject the applicant’s claim as to his nationality demonstrates upon analysis in the ways I have referred to above a rigid and at times inexplicable finding adverse to him. …

Reference may also be made to His Honour’s decision in SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591. But such is not the present case.

13                  The “particulars” provided in the Notice of Appeal presently under consideration in respect to “bad faith” are but disagreement with findings of fact which are entrusted to the Tribunal alone to make. Those findings fall well short of establishing “bad faith” — or, for that matter, any other form of jurisdictional error.

14                  The final purported “Ground of Appeal” is without substance. Two answers may be provided for reaching this conclusion. First, it is not correct to contend that the Tribunal “did not give any weight to the response” provided by the now Appellant. The exchange of correspondence to which this purported Ground is directed is the s 424A letter forwarded on 26 October 2007 and the response provided by way of a letter dated 16 November 2007. The s 424A letter set forth a number of inconsistencies in the account of the facts then provided and the now Appellant’s November 2007 letter in reply addressed each of those matters. The exchange of correspondence was set forth by the Tribunal in its reasons for decision and the Tribunal thereafter proceeded to record its findings. The Tribunal “did not find the applicant to be credible on some key aspects of his claims”. A contention that the Tribunal gave no “weight” to the response cannot be sustained in circumstances where the response was expressly referred to in the Tribunal’s account of the facts and again in its findings. The Tribunal may not have given the now Appellant’s response such persuasive “weight” as he may have desired; but the response was considered — and rejected.

15                  The second basis for concluding that this purported Ground is without substance is that it is no part of the function of the Federal Magistrates Court when reviewing a decision of the Tribunal, or for this Court on appeal, to question the “weight” given by the Tribunal to particular facts or considerations. That is a matter for the Tribunal alone. In an oft-cited passage in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Mason J observed:

… The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned…

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power… I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is “manifestly unreasonable”. …

See also: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281–2. It is also to be recalled that a principal reason provided by the Tribunal in the rejection of the claims being made was its conclusion that the now Appellant was not “credible” and was “not a reliable witness”. Such findings, it has been said, are findings “par excellence” entrusted to the decision-maker: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, 168 ALR 407. McHugh J there rejected an argument that a failure to provide reasons for a finding that a claim was “utterly implausible” constituted a breach of s 430 and, in doing so, observed:

[67] … 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. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.

No greater reasons need have been provided by the Tribunal in the present proceeding for its conclusions; nor need the Tribunal have explained what “weight” it gave to the November 2007 response.

16                  Notwithstanding the form of the Notice of Appeal, independent consideration has been given to the reasons provided by the Federal Magistrates Court. No appellable error has been discerned.

17                  The appeal must be dismissed with costs.

ORDERS

18                  The orders of the Court are:

1.             The Notice of Appeal as filed on 3 October 2008 is dismissed.

2.             The Appellant is to pay the costs of the First Respondent.

Associate:

Dated:         26 November 2008