FEDERAL COURT OF AUSTRALIA

SZNIR v Minister for Immigration and Citizenship [2009] FCA 1273

SZNIR and SZNIS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 728 of 2009

GRAHAM J

2 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed

2.                  The appellants pay the respondent Minister’s costs fixed in the sum of $3,825.

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 first appellant was born in Akhaj in Gujarat in India in 1974.  His wife, who is the second appellant was born in India in 1982.  The appellants married in or about 2000/2001. 

A passport was issued to the first appellant on 26 October 2004, and a passport was issued to the second appellant on 30 September 2003.  The appellants left India on 30 June 2008 and arrived in Australia on 1 July 2008. 

2                     On 12 August 2008 the appellants lodged applications for Protection (Class XA) visas.  Those applications were refused by a delegate of the Minister on 10 November 2008 whereupon the appellants sought review of the Minister’s delegate’s decision by the Refugee Review Tribunal by an application lodged on 19 November 2008.

3                     The appellants were invited to attend a hearing before the Tribunal on 14 January 2009.  The letter inviting the first appellant to attend the hearing before the Tribunal referred to the applications for review to the Tribunal of the appellants and included a notation that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone.  The first appellant attended the Tribunal hearing which lasted for approximately two hours. 

Extra documents were submitted by the first appellant to the Tribunal under cover of a letter dated 28 January 2009.

4                     On 18 February 2009 the Tribunal affirmed the decisions of the Minister’s delegate not to grant the appellants Protection (Class XA) visas. 

5                     The appellants then instituted proceedings in the Federal Magistrates Court of Australia seeking Constitutional writ relief in respect of the Tribunal’s decision, on 16 March 2009.  That Application contained three grounds.  It was superseded by an Amended Application filed 11 May 2009 which included four grounds.

The Amended Application for review came before the Federal Magistrates Court constituted by Smith FM on 30 June 2009.  The appellants did not appear.  In the circumstances the learned Federal Magistrate proceeded to deal with the Amended Application conducting a hearing pursuant to r 13.03C(1)(e) of the Federal Magistrates Court Rules 2001 (Cth). 

His Honour ordered that the application be dismissed and that the appellants pay the first respondent’s costs fixed in the sum of $3900. 

6                     From that decision the appellants have appealed by Notice of Appeal filed 16 July 2009 to this Court.  The grounds of appeal relied upon were expressed as follows:

‘2.        The single Judge of the Federal Magistrate Court in his Honours judgement delivered on the 13 March 2009 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 and made the decision in absence of applicants.

4.         The Tribunal, in making its determination, failed to record in decision in accordance with section 430 of the Migration Act (sic).

Particular:

a.         The Tribunal made no finding as to the extent or nature of persecution suffered by the applicant.

b.         The Tribunal however found that any persecution suffered was not for any Convention reason but did not give reasons for this finding.

c.         The Tribunal failed to record the material facts for the reasons referred to above.’

7                     When the appeal was called for hearing the first appellant was assisted by an interpreter from the Gujarati language into English and visa versa.  I indicated to the first appellant that if he wished to do so he could address the Court in English, if indeed he spoke English.  He asserted that he did not and the hearing proceeded with the benefit of the interpreter throughout.  However, it became apparent to me that the appellant was able to at least read English as he pointed to pieces of paper expressed in the English language in the course of dealing with matters as they came up before the Court.

8                     Be that as it may, all of the grounds of appeal contained in the Amended Application before the Federal Magistrates Court and in the Notice of Appeal in this Court were interpreted for the first appellant’s assistance. 

The appellants failed to file any outline of written submissions or any other documents with the Court in support of the Notice of Appeal.  When invited to do so the first appellant had very little to say about the Notice of Appeal or the grounds contained in it to which reference has been made.

9                     In respect of ground 2 he was invited to present submissions in support of the ground.  His response was to the effect that ‘it’s up to you now, your Honour’, indicating that he had nothing more to say.  In respect of grounds 3 and 4 he also indicated that there was nothing that he wished to say.  The only relevant contribution of the first appellant to argument in respect of the Notice of Appeal was to ask of the Court why a medical certificate had not been considered at a previous hearing.  My understanding is that the medical certificate referred to was that of a Dr Salahuddin Khan, who apparently issued a medical certificate in respect of the first appellant indicating that he would be unfit to continue his usual occupation during the period 24 June 2009 to 1 July 2009 inclusive.  It was indicated that the first appellant was ‘receiving medical treatment’.

10                  The certificate was said to have been completed on 24 June 2009.  It will be observed that the medical certificate made no reference to any ailment or injury, and did not say anything about the first appellant’s ability to attend a court hearing in the period to which the certificate related.  The suggestion that the medical certificate was not considered does not bear analysis.  It was specifically referred to in the reasons for judgment of the learned Federal Magistrate of 30 June 2009.  In his reasons for judgment (SZNIR v Minister for Immigration [2009] FMCA 638) the learned Federal Magistrate said at [10]-[11]:

‘10.      If the applicant has travelled to the Northern Territory for the period of his court hearing, rather than to Sydney or a place more accessible to Sydney, then he has not explained why this was reasonable, in circumstances where one might assume that a successful pursuit of the present court case was of the greatest importance to the applicant’s desire to stay in Australia. 

11.       Notwithstanding the above, I might have been inclined to adjourn the hearing had I been able to detect any merit in the application.  However, I have not.  As I shall explain, the refugee claims made by the applicant were most unpersuasively presented to the Tribunal.  More pertinently, his grounds in support of judicial review are lacking in arguable merit.’

The same might be said in respect of the grounds contained in the Notice of Appeal before this Court. 

11                  On 19 August 2009 the first respondent filed a Notice of Objection to the competency of the appeal, contending that an appeal from the judgment of the learned Federal Magistrate, following a hearing pursuant to r 13.03C(1)(e) of the Federal Magistrates Court Rules could only be brought pursuant to a grant of leave to appeal in accordance with s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 

12                  On the hearing of the appeal the first respondent indicated that the first respondent did not wish to press the objection to competency, which would require a finding that the judgment of the learned Federal Magistrate of 30 June 2009 was interlocutory.  It may well be that the judgment was interlocutory (see Kowalski v MMAL Staff Superannuation Fund Pty Limited [ACN 064 829 616]) (2009) 259 ALR 319 at [32]-[44].  See also SZJPG v The Minister for Immigration and Citizenship [2008] FCA 1240 at [16]).  However, in the light of the position taken by the Minister, the court has been invited to deal with the notice of appeal without addressing the objection as to competency. 

13                  Decisions upon the grant or refusal of protection visas are made in the first instance by the Minister, his or her powers normally being exercised by one or other of the Minister’s delegates, for the purposes of s 65 of the Migration Act 1958 (Cth) (‘the Act’).

14                  Section 65 of the Act relevantly provides;

‘65(1)  After considering a valid application for a visa, the Minister:

(a)        if satisfied that:

…

(ii)        the other criteria for it prescribed by this Act or the regulations have been satisfied;  …

…

is to grant a visa; or

(b)        if not so satisfied, is to refuse to grant the visa.’

15                  The relevant criterion for the grant of a protection visa to which s 65(1)(a)(ii) refers is to be found in s 36(2) of the Act, which relevantly, for present purposes, provided as follows:

‘36(2)  A criterion for a protection visa is that the applicant for the visa is:

(a)        a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;  or

(b)        a non-citizen in Australia who is the spouse … of a non-citizen who:

(i)         is mentioned in paragraph (a);  and

(ii)        holds a protection visa.’

The Refugees Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967.  Hereafter I will refer to the Refugees Convention as amended by the Refugees Protocol as ‘the Convention’. 

16                  Plainly, satisfaction under s 65(1) is not to be addressed by deciding where the truth lies on the balance of probabilities.

As has been said many times proceedings in the Tribunal are not adversarial but rather inquisitorial.  The Tribunal is not in the position of a contradictor of the case being advanced by an applicant.  The Tribunal member conducting the relevant inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair (see per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte APPLICANT S154/2002 (2003) 201 ALR 437 (‘Applicant S154’) at [57]; see also Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [40]).

17                  The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on.  It is for an applicant to advance whatever evidence or argument he or she may wish to advance before the Tribunal and for the Tribunal to decide whether the relevant claim has been made out (see per Gummow and Hayden JJ in Applicant S154 at [57] – [58]). 

18                  Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given.  On the contrary, to adopt such a course would be likely to run a series risk of conveying an impression of pre-judgment (per Gleeson CJ, Kirby, Hayne, Callinan and Hayden JJ in SZBEL v Minister forImmigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]). 

19                  The question of who answers the description of a refugee is relevantly determined by Article 1 of the Convention which relevantly provided:

‘A.       For the purposes of the present Convention, the term “refugee” shall apply to any person who:

…

(2)       … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence … is unable or, owing to such fear, is unwilling to return to it.’

20                  Reference was made in the amended grounds of the Application in the Federal Magistrates Court to s 424A of the Act. 

In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (‘SZBYR’) Gleeson CJ, Gummow, Callinan, Heydon, and Crennan JJ drew attention at [22] to the ‘limited scope of s 424A’ and at [15] and [21] they said:

 ‘[15]   … Section 424A does not require notice to be given of every matter the tribunal might think relevant to the decision under review. …

…

[21]     … Section 424A has a more limited operation than the appellants assumed:  its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the tribunal. …’

21                  At [18] their Honours approved a passage in the joint reasons for judgment of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477 saying:

‘… 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. …’ 

(footnotes omitted and emphasis added)

22                  The first appellant’s claim to refugee status was recorded in a ‘statement’ occupying one and a half typed pages contained within his application for a Protection (Class XA) visa.  He claimed to be a Hindu who was a supporter of the Congress Party.  The majority of Hindus were supporters of the BJP Party.  He claimed to be, in effect, a Muslim sympathiser.  Later, he directed his allegiance more, so he says, to the BJP Party than the Congress Party.  He referred in his statement to a bad communal riot which, as I understood his statement, followed the procession of the chariot of Lord Krishna, during the Festival of Rathyatra where stones, acid bulbs and other harmful things had been thrown which had resulted in communal violence.  At some stage the first appellant said that he had been attacked by some unknown people and that he was badly injured and hospitalised. 

23                  He claimed to have a well-founded fear of persecution for reason of his religion and political opinion.  The problem that he faces is that he simply was not believed by the Tribunal member.  On numerous occasions in the reasoning of the Tribunal member, one finds in respect of matters asserted by the first appellant, that the Tribunal ‘does not accept’ the matter alleged.  One finds several references to testimony being ‘internally inconsistent’, ‘inconsistent with independent country information’ and ‘lacking in detail’.  One also finds references to matters having been fabricated and numerous instances where the Tribunal member did not accept the first appellant as a witness of truth. 

24                  One matter to which the Tribunal member adverted in indicating that she was not satisfied that the first appellant had a well founded fear of persecution, was reference to a claimed period of hospitalisation for 25 days.  Support for this contention was said to be found in a medical certificate forwarded to the Tribunal under cover of the letter of 28 January 2009 to which reference has been made.

25                  The medical certificate was curious in its expression if, indeed, the first appellant had been hospitalised for a period of 25 days following injuries he was said to have sustained in the Rathyatra festival, to which reference has been made, in 2007.  The certificate bore the date, 21 July 2007, which was said to have been the date on which the injuries were sustained and referred to unspecified ‘serious injuries’, to the first appellant having been admitted to hospital and having been treated by the doctor who issued the certificate. 

26                  What is apparent in this case, is that the first appellant is seeking nothing other than a merits review of the Tribunal’s decision.

It may be that nothing more was sought by the appellants than a prolongation of their stay in Australia. 

27                  One could describe the amended application for review and the notice of appeal in this court, as nothing other than a scatter gun approach directed at challenging the Tribunal decision.  In my opinion none of the grounds have been established and, in the circumstances, the appeal should be dismissed with costs.

Associate:

Dated:         6 November 2009

The First Appellant appeared in person.

The Second Appellant did not appear.

The Second Respondent filed a submitting appearance