FEDERAL COURT OF AUSTRALIA

SZNCX v Minister for Immigration and Citizenship [2009] FCA 1315

 Migration Act 1958 (Cth), ss 424, 424A, 424A(1), 424AA,

SZNCX v Minister for Immigration and Citizenship [2009] FMCA 679

Abebe v Commonwealth (1999) 197 CLR 510

NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167

Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

SZNCX and SZNCY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 773 of 2009

REEVES J

13 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

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                     This is an appeal against a judgment of a Federal Magistrate delivered on 9 July 2009, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

BACKGROUND AND PROCEDURAL HISTORY

2                     The appellants are citizens of India who arrived in Australia on 31 May 2008.  On 11 June 2008, the appellants lodged applications for protection visas with the Department of Immigration and Citizenship.  A delegate of the Minister for Immigration and Citizenship (“the Minister”) refused these applications.  The appellants then applied to the Tribunal for a review of that decision.  The Tribunal subsequently affirmed the delegate’s decision.  The appellants then made an application for judicial review of the Tribunal’s decision to the Federal Magistrates Court of Australia.

3                     The second appellant is the husband of the first appellant (“the appellant”) and he applied for a protection visa on the basis of his membership of the appellant’s family.  Therefore, whether he is found to be a refugee under the Convention depends on the outcome of the appellant’s appeal.

CLAIMS OF RELIGIOUS PERSECUTION

4                     The appellant (“the appellant”) claimed that she belonged to a “Christian Other Backward Community” in Kerala, a caste considered as “other backward community”.  She stated that she faced discrimination due to her caste in her education and social life.

5                     In 1994 there was escalating violence between Christians and Muslims in Kerala and the appellant claimed that she and her family were assaulted by armed Muslim thugs, and that many of her friends and distant relatives were killed by Muslims.

6                     After graduation the appellant joined ten other members of her Church in working for disadvantaged and socially discriminated women and children.  Her work involved teaching, conducting Bible classes, assisting with clothing and providing financial assistance.

7                     The appellant claimed that in 2006 and early 2007 she received threatening telephone calls from Hindu fundamentalists who threatened her and other Church workers and accused them of converting the Schedule Castes and Schedule Tribes to Christianity.  She claimed that she was stopped by thugs of the Hindu political party Rashtriya Swayamsevak Sangh (“RSS”) and harassed.

8                     Furthermore, the appellant claimed that in January 2008 a group of Schedule Castes and Schedule Tribes approached and requested that she help them with their children’s education.  She stated that she contacted the Church and was told to do the work.  She claimed that she and others received threatening telephone calls warning them to cease their activities or face punishment.  She stated that one member of the group was severely assaulted by the RSS.

9                     The appellant claimed that she was unable to receive protection from the police, or the government in Kerala.

THE tribunal AFFIRMS THE DELEGATE’S DECISION – APPELLANT NOT A CREDIBLE WITNESS

10                  The Tribunal accepted that the appellant was a Christian and had been a member of the congregation of the Catholic Church in her village, that she had been involved in teaching literacy skills to “untouchable” Hindus, and that this activity may have resulted in a number of Hindus converting to Christianity.

11                  However, the Tribunal was not satisfied that the appellant’s account of having suffered harm in India in the past was credible.  It noted that her evidence at the hearing was vague about the specific incidents of harm she claimed to have suffered and that she had provided little or no circumstantial detail about the attacks and threats.  The Tribunal stated that at no point did her responses to questions about these matters give the impression that it was based on authentic first hand experience.

12                  The Tribunal also noted that the appellant made new claims at the hearing, and her failure to raise those claims earlier led it to conclude that she was prepared to adapt her evidence, casting doubt over the credibility of her claims in general.

13                  The Tribunal also found that there were inconsistencies in her evidence about the identity of the persons who were said to have threatened and harmed her.  The Tribunal placed no weight on a letter from a priest on the basis of the vagueness of the claims contained in it.

14                  Further, on the country information available to the Tribunal, it was not satisfied as to the credibility of the appellant’s claim that the current coalition government in Kerala was opposed to her work and nor was it satisfied that the government opposed Christianity.  The Tribunal was also not satisfied that the government would have withheld protection from her, if she had sought it, as a result of being threatened by Hindu fundamentalists.  The Tribunal was not satisfied that the appellant was ever harmed, or threatened, as a result of her work with the Church, or that she was forced to leave India and come to Australia for her own safety.

15                  In summary, the Tribunal was satisfied that the appellant could return to India and involve herself in social welfare activities with Hindu untouchables and concluded that she did not have a well-founded fear of persecution for any Convention-related reason.   

THE FEDERAL MAGISTRATE FINDS NO JURISDICTIONAL ERROR

16                  In her amended judicial review application to the Federal Magistrates Court, the appellant raised the following grounds (in summary):

1.                  The Tribunal’s conclusions regarding the appellant’s credibility were not obviously open to it on the known material, and were made without giving the appellant the opportunity to be heard in respect of those matters.

2.                  The Tribunal failed to give the appellant the benefit of the doubt in circumstances where it entertained the possibility that the appellant’s claims were plausible.

3.                  The Tribunal failed to provide the appellant with country information that it had about India and Kerala before the hearing, in breach of s 424A of the Migration Act 1958 (Cth) (“the Act”)

4.                  The Tribunal failed to properly consider the appellant’s claim that she feared persecution on the basis of her social welfare activities with Hindu untouchables, which lead to their conversion to Christianity.

5.                  The Tribunal applied the wrong test in considering the appellant’s claims and placed too high an onus on the appellant by requiring her to adduce independent evidence of her claims.

17                  The Federal Magistrate found that there was no substance to the appellant’s contention in the first ground of review, that she was denied an opportunity to be heard in relation to the matters upon which the Tribunal determined her credibility.  His Honour was satisfied that the Tribunal put to the appellant very clearly in the course of the hearing the concerns it had, and he noted that the appellant attempted to meet them in her responses.  His Honour also noted that the appellant was given a further opportunity after the hearing to present more material if she wished.

18                  His Honour observed that the second ground of review was obscurely worded, but he assumed the appellant was contending that the Tribunal had misapplied the “real chance test”.  On that assumption, his Honour referred to a number of authorities by which he said it was “very well established” that the Tribunal was entitled, as it did, to consider whether it was satisfied about the truth of the appellant’s claims.  If it was clearly dissatisfied, as it was, it was not obliged to apply the “real chance test” on the hypothesis that its finding about the appellant’s credibility were wrong.  His Honour could, therefore, detect no error in the Tribunal’s reasoning on this aspect.  In any event, his Honour noted that the Tribunal did proceed to consider the appellant’s application upon the alternative hypothesis and concluded that she would not be denied protection if she returned to Kerala in India.

19                  His Honour found that the appellant’s third ground of review was misconceived at law as the Tribunal was under no obligation to put to her the independent country information concerning the situation in Kerala, by way of a written invitation under s 424A(1) of the Act, or orally under s 424AA.  In any event, his Honour noted that the Tribunal did put the gist of the independent country information to the appellant in the course of the hearing and explained to her its relevance to her application.  He added that, in this respect, it may have followed the procedures under s 424AA, even though it was not required to do so.

20                  His Honour rejected the fourth ground of review, stating that it was plainly wrong because the Tribunal had clearly addressed these aspects of the appellant’s claims.

21                  Finally, in relation to the fifth ground of review (described as ground 4, second appearing), his Honour found that there was no evidence that the Tribunal applied the wrong test.  Furthermore, his Honour concluded that the Tribunal had not required the appellant to provide independent evidence of her claims and had, instead, considered her claims on the basis of the evidence she presented.

22                  His Honour also considered a number of oral submissions made by the appellant that went beyond the contentions in her amended application.  In relation to those submissions, his Honour concluded that they all constituted attempts to engage in a review of the merits of the Tribunal’s decision and did not evidence any jurisdictional error on the part of the Tribunal.

23                  The Federal Magistrate accordingly dismissed the appellant’s application for want of jurisdictional error.

THE CONDUCT OF THE PRESENT APPEAL

24                  On 29 July 2009, the appellant filed a notice of appeal in this Court which alleged that:

1.                  The Court below erred in that it ought to have held that on the evidence before the Tribunal it was pen to the Tribunal to find that the appellans was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:

            Particular:

            i. it failed to properly apply the consideration that applicants for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicants claims are plausible, which was the case here.

            [Errors in original]

25                  On its face, this notice of appeal is extremely general and unparticularised.  It appears to be very similar, if not identical (complete with spelling errors), to many of the notices of appeal that have come before me involving appeals by appellants who come from Kerala in India.  From this, I assume it is based upon a precedent that is circulating within that community.  The same situation appears to have arisen before the Federal Magistrate in this case:  see [2009] FMCA 679 at [28].  As a consequence, the grounds stated in this notice of appeal do not correlate to the particular circumstances of this appellant’s matter.  That is, of course, quite unhelpful.  Nonetheless, I will proceed to deal with it as best I can.

26                  This matter was originally listed to be heard before me at 10.15 am on 9 November 2009.  During the week before the hearing, the appellant sought an adjournment of the hearing on the basis that she was ill.  In support of that application, she provided a medical certificate, which stated:  “[the appellant] is 21 weeks pregnant.  This is her first pregnancy and she has been suffering from nausea, vomiting and dizziness.  She has been a patient of mine for last (sic) six months.”

27                  Because this medical certificate did not state that the appellant was too ill to attend the hearing, I did not agree to adjourn the hearing, but in the circumstances I allowed her to appear by telephone at the hearing on 9 November 2009.

28                  As a consequence, the appellant appeared by telephone at the hearing on 9 November 2009.  Ms Francois appeared for the Minister.  At the outset of the hearing, the appellant stated, among other things, that she was too ill to present her case by telephone and she asked to have the hearing of the matter adjourned to a later date.

29                  After hearing both sides, I eventually agreed to adjourn the matter to 10.15 am on 11 November 2009.  This was done to allow the appellant to obtain a further medical certificate stating that she was too ill to attend the hearing and present her case by telephone.  At the time, I also raised the possibility of the appellant’s husband, the second appellant, attending and presenting the case for both of them.

30                  Before the adjourned hearing on 11 November 2009, the appellant sent a letter to the Court attaching a further medical certificate.  The first paragraph of that medical certificate was in almost identical terms to the earlier medical certificate.  However, the second paragraph stated:  “She is also very anxious and not well enough to attend the court hearing.”  This certificate obviously did not address the critical question whether the appellant was too ill to attend the hearing and present her case by telephone.

31                  When the hearing of the matter resumed on 11 November 2009, the second appellant appeared in person.  He was assisted by an interpreter.  The appellant herself appeared by telephone.

32                  At the outset of that hearing, the appellant again applied to have the hearing of the appeal adjourned to a later date.  She initially applied to have it adjourned indefinitely, but later restricted that to a one month adjournment.  I heard from both sides and decided not to grant the adjournment.  My reasons for this decision will be published separately.  In summary, I was not satisfied that the appellant was too ill to attend the hearing and present her case by telephone and, even if she were, given that the appeal was limited to matters of law and she had already filed an outline of written submissions, I was not satisfied she would suffer the requisite level of prejudice if the matter were to proceed with her attending by telephone and her husband, the second appellant, attending in person.

33                  When the hearing proceeded, the second appellant made some short oral submissions to the effect that the Tribunal had asked the appellant to produce evidence about the incident in 1996 and, because that incident had occurred so long ago, it was not possible for them to do so.  He implied that this was unfair.  The appellant herself did not make any oral submissions.  As noted above, the appellant had previously filed an outline of written submissions.  Those written submissions went beyond the matters raised in the notice of appeal.  In summary, they were as follows:

1.         The Tribunal breached s 424 of the Act by inviting the appellant to give information to the Tribunal when the invitation:

(i)         did not specify the manner in which the additional information was to be given; and

(ii)        did not specify the period within which the information was to be given.

2.         The Tribunal’s conclusions regarding the appellant’s credibility were not obviously open to it on the known material, and were made without giving the appellant the opportunity to be heard in respect of those matters.

3.         The Tribunal failed to provide the appellant with country information that it had about “Outward Backward Class” (“OBC”) Christians in Kerala and political parties in Kerala and India before the hearing, in breach of s 424A of the Migration Act 1958 (Cth) (“the Act”).

4.         The Tribunal failed to properly consider the appellant’s claims of persecution in India, particularly the future harm the appellants may face if they were to go back to India, therefore, the Tribunal had failed to apply the “real chance test”.

5.         The Tribunal’s decision was affected by actual bias.

34                  It will be apparent that, with the exception of 1 and 5 above, both of which are new matters, these complaints are similar, if not identical, to those raised in the grounds of review before the Federal Magistrate.

35                  The Minister also filed an outline of written submissions.

CONSIDERATION

36                  The errors identified the sole ground of appeal (above) seek to challenge the factual conclusions the Tribunal reached, as to whether there was evidence to establish that the appellant was a refugee.

37                  Even if there was some error in the Tribunal’s conclusions about this matter – it is not possible from the unparticularised and general nature of the ground of appeal to begin to assess whether there is – there is clear authority that errors in the Tribunal’s factual conclusions cannot, without more, amount to jurisdictional error:  see Abebe v Commonwealth (1999) 197 CLR 510 at 560 (at [137]).

38                  Furthermore, it is not the role of this Court, nor is it the role of the Federal Magistrates Court, to second guess the Tribunal’s fact finding role, or to engage in a merits review of the Tribunal’s decision.  These are matters that fall squarely within the fact finding jurisdiction of the Tribunal:  see, eg NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9].

39                  It follows that the appellant’s sole ground of appeal must be rejected.

40                  Turning then to the matters raised in the appellant’s outline of written submissions.  As noted above, the first submission raises a new matter in the sense that it was not raised before the Federal Magistrates Court.  Ms Francois submitted that the appellant should not be permitted to rely upon this matter, either because it is new, or because it has no merit and is, therefore, futile.  Because the appellant is not legally represented, I will deal with this matter on the latter basis.  This effectively requires me to consider the submission on its merits.

41                  In this submission, the appellant has not identified what “additional information” she is referring to.  In the Minister’s written submissions, Ms Francois points out that the Tribunal did not, in fact, seek any “additional information” from any source.  From my reading of the Tribunal’s decision, apart from independent country information, which obviously falls into a different category, what Ms Francois says appears to be correct.  It follows that, in the absence of any evidence that the Tribunal sought any “additional information”, this submission is devoid of merit and must therefore be rejected.

42                  The second of the appellant’s written submissions raises a matter which is similar, if not identical, to the first ground of review before the Federal Magistrate:  see [16.1] above.  From his consideration of the Tribunal’s reasons for decision, the Federal Magistrate found no substance in this allegation:  see [17] above.  I agree.  It follows that this submission must be rejected.

43                  The third of the appellant’s written submissions is also similar to one of the grounds of review before the Federal Magistrate:  see [16.3] above.  I do not consider the additional references, eg to the OBC, affect this similarity.  The Federal Magistrate concluded that the similar ground before him was misconceived as a matter of law because the Tribunal was under no obligation to put any independent country information to the appellant:  see [19] above.  Again, I agree.  It follows that this submission must also be rejected.

44                  While it is just as obscurely worded as it was before the Federal Magistrate, the fourth of the appellant’s written submission appears to raise the application of the “real chance test”.  This is similar to the second ground of review before the Federal Magistrate:  see [16.2] above.  The Federal Magistrate rejected this ground on the basis that the Tribunal was entitled to reject the appellant’s claims on credibility grounds without proceeding further.  Furthermore, it was not required to proceed to apply the “real chance test” on the basis that its conclusions about the appellant’s credibility were wrong.  In any event, as the Federal Magistrate pointed out, the Tribunal did proceed to consider the appellant’s claims on this alternative hypothesis:  see [18] above.  Having considered the Federal Magistrate’s reasoning, I agree with it and the conclusions he reached.  It follows that this fourth submission must also be rejected.

45                  The fifth and final submission contained in the appellant’s written submissions alleges actual bias on the part of the Tribunal.  This is a new matter and I will take the same approach to it as I did to the first submission:  see [40] above.

46                  An allegation of bias against the Tribunal is a serious allegation of wrongdoing, which must be distinctly made and clearly proved:    see Minister for Immigration and Multicultural and Indigenous Affairs v Jia Legeng (2001) 205 CLR 507 (“Jia Legeng”) at [69] and [127].  To establish actual bias, the appellant would need to show that the Tribunal was:  so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.  See Jia Legeng at [72].  Furthermore, it is rare and exceptional for actual bias to be inferred solely from a consideration of the Tribunal’s reasons for decision:  see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. 

47                  To begin with, the appellant’s allegation of bias is in the most general of terms.  It is the antithesis of an allegation that has been distinctly made.  To compound this, the only evidence the appellant appears to rely upon to support the allegation is the manner in which the Tribunal dealt with her claims in its reasons for decision.  She has produced no other evidence.  There is nothing on the face of the Tribunal’s reasons for decision which comes close to making this one of those rare and exceptional cases where actual bias can be inferred.  It necessarily follows that this fifth submission in the appellant’s written submissions must also be rejected.

CONCLUSION

48                  For these reasons this appeal must be dismissed.  I so order.  I will hear the parties on the question of costs.

Associate:

Dated:         13 November 2009