FEDERAL COURT OF AUSTRALIA

SZNLT v Minister for Immigration and Citizenship [2009] FCA 1332

SZNLT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1009 of 2009

COWDROY J

20 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The Appellant pay the costs of the First Respondent in the fixed amount of $3,375 pursuant to O 62 r 4(2)(c) of the Federal Court Rules.

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 appellant appeals from the decision of Federal Magistrate Smith delivered on 25 August 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 19 March 2009. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection (Class XA) visa to the appellant.

BACKGROUND

2                     The appellant is a citizen of India who arrived in Australia on 28 July 2008. On 8 September 2008 the appellant 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 1 December 2008. On 24 December 2008 the appellant applied to the Tribunal for a review of that decision.

3                     In his application for a protection visa, the appellant claimed that in July 2000 he became employed at a garment factory, where he was elected union leader. The appellant claimed that the owner of the factory was a BJP (a political party) leader, and the appellant was sacked in the middle of 2004 as a result of his fights with the management for the benefit of his co-workers. The appellant claimed that in August 2005, he and a friend started their own garments factory which became a successful business. The appellant claimed he was then approached by a BJP leader and told that if he wanted to continue his business he would have to donate to the BJP, even though the leader knew that the appellant was a union leader and executive member of the CPI(M) (which is a political party). The appellant stated that he did not make the donation to the BJP as demanded, and was attacked by BJP thugs while travelling with another friend. The thugs also allegedly ransacked the appellant’s business and attacked his workers.

4                     The appellant stated that he moved to Dubai in September 2006. He claimed that when he returned to Bangalore some three months later, he found that his friend (with whom he had founded the garment business) had been killed. The appellant claimed that this made him mentally ill, leading to him being hospitalised. He claimed that he was threatened by BJP thugs to keep quiet about the murder.

THE TRIBUNAL’S DECISION

5                     The Tribunal found that the appellant was not a credible witness. It found that his claims before the Tribunal had changed significantly from his claims contained in his earlier statement to the delegate of the Minister. For example, in the appellant’s written submission provided with his Application, his main claim was that he was attacked because of his political allegiances whereas in oral submissions before the Tribunal he appeared to suggest it was his murdered friend’s political allegiances that led to his fear of persecution.

6                     In a previous and unrelated application for a business visa in 2008, the appellant provided documents and completed the application suggesting that he had a bachelors degree from Mahatma Ghandi University and his field of work was as a ‘dance master’. During the present application for a protection visa the appellant maintained that he had no degree, had only completed 12 years of schooling and worked as a garment manufacturer. The Tribunal put the discrepancy to the appellant and he stated that the previous application had been completed for him by a migration agent and he had merely signed it, and was thus unaware of its contents. The Tribunal found that the appellant ‘had knowingly and intentionally provided false documents; or caused such documents to be provided on his behalf, in order to achieve a migration outcome’. The Tribunal found that this reflected poorly on the appellant’s overall credibility in the present protection visa application.

7                     The Tribunal found that the appellant’s evidence regarding his involvement in the CPI(M) was vague, and that he showed limited knowledge of the party. On this basis, the Tribunal did not accept that the appellant would be targeted by opposition parties, and found that there was no real chance that the appellant would be persecuted as a result of his political opinion if he returned to India.

8                     The Tribunal also noted the vagueness of the appellant’s evidence about the murder of his friend and the supposed car accident the appellant was involved in that he claimed had been caused by BJP supporters. While the Tribunal accepted that the appellant had been injured in a car accident, it found that the appellant could not prove that such event was anything more than a genuine accident.

9                     The Tribunal also drew support for its conclusions from the appellant’s return to Bangalore from Dubai in 2006 (suggesting he did not fear for his safety there) and the delay in his leaving India to come to Australia following the supposed attacks against him and the alleged murder of his friend (again suggesting he did not fear for his safety).

10                  Based upon its findings, the Tribunal rejected each of the elements of the appellant’s refugee claims. It found that there was no real chance that he would be persecuted for a Convention reason if he returned to India now or in the reasonably foreseeable future. The Tribunal therefore affirmed the decision of the delegate of the Minister not to grant the appellant a Protection (Class XA) visa.

FEDERAL MAGISTRATES COURT

11                  By Application filed in the Federal Magistrates Court of Australia on 16 April 2009 (‘original Application’), and by Amended Application filed on 22 June 2009, the appellant sought judicial review of the Tribunal’s decision.

12                  Before Federal Magistrate Smith the appellant claimed in the original Application:

1. The Tribunal applied the Wrong test:

1. The Tribunal did not give to the applicant before the hearing the information that it had about the political history and it did not give to the applicant the information it had about Kerala politics from other sources . The Tribunal used this information while making the decision. This was against section424A of the Migration Act 1958.

2. The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusions that the applicant’s claims were vague and inconsistent, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

3.The applicant satisfies the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

4. The member of the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:

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

[all errors are those of the original Application]

13                  The second and third grounds in the Amended Application repeated the grounds above. The first ground (and only new ground) of the Amended Application contended:

1. My first concern is the great weight that the Tribunal place upon my return from UAE to India as evidence that my fears were not genuinely held. In the matter of SZMDS v MIAC [2009] FCA the Court held that the Tribunal must have a rational basis for finding that an applicant’s basis for returning to his country of nationality demonstrates that the applicant did not have a genuine fear of persecution in that Country. I have provided rational reasons as to why I returned to India and Tribunal did not consider that therefore, committed judicial error.

14                  In respect of the first ground of the original Application, the Federal Magistrate stated that the Tribunal was under no obligation under s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’) to give a written invitation to the appellant to comment on general country information about Kerala politics, since such information was excluded by s 424A(3)(a) of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW and Others (2004) 140 FCR 572.

15                  In respect of second ground of the original Application, the Federal Magistrate found that, on the basis of the Tribunal’s description of its hearing, the appellant was fairly taken to the various concerns which ultimately caused the Tribunal to disbelieve the appellant. The Tribunal’s adverse conclusions were, in his Honour’s opinion, rational and reasonably open on the material before it.

16                  In respect of third ground of the original Application, the Federal Magistrate stated that it was not the function of the Court to apply the Convention definition, and that in any event the Tribunal’s conclusion turned upon its failure to be satisfied by the appellant’s claimed history of persecution, rather than upon the application of any particular element in the Convention definition.

17                  In respect of fourth ground of the original Application, the Federal Magistrate noted that it is now well established that the Tribunal is not obliged to consider an applicant’s claims upon the hypothesis that they are based on truth, if it has arrived at firm conclusions to the contrary. The Federal Magistrate cited Minister for Immigration and Multicultural Affairs v Rajalingam and Others (1999) 93 FCR 220 at 239–241, Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 at [11]-[14] and SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 at [42]-[53] in support of this contention.

18                  In respect of first ground of the Amended Application, the Federal Magistrate distinguished the present matter from the decision in SZMDS v Minister for Immigration and Citizenship and Another (2009) 107 ALD 361. The Federal Magistrate stated that, in the present case, the Tribunal’s findings regarding the appellant’s credibility formed a rational and logical basis for its conclusions.

19                  Having found no jurisdictional error in the Tribunal decision, Federal Magistrate Smith dismissed the Amended Application.

APPEAL TO THIS COURT

20                  On 14 September 2009 the appellant filed in this Court a Notice of Appeal from the decision of Federal Magistrate Smith. The appellant raises the following grounds of appeal:

2.[sic] The Federal Magistrate Court failed to consider the ground of my appeal such as error of law made by the Tribunal failed to comply with s424 of the Migration Act 1958.

a) At The hearing, the Tribunal invited the applicant to give information addition to that which the Tribunal had obtained

i. The Tribunal asked questions which called for information which the applicant had not already provided to the Tribunal, or which the Tribunal had not obtained in another way.

b)The Invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act:

i) The invitation did not specify the way in which the additional information may be given.

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

2. The grounds of the application are the Tribunal failed to comply with the mandatory procedure prescribed by the Act, in failing to comply with section 424AA (b) (iv) of the Act.

(a) His honour failed to establish that the Tribunal and the Federal Magistrate Court made error in law and jurisdictional error in relation to relief under section 424A of the Migration Act.

(b) His honour failed to find that the tribunal did not consider UNHCR section 4, 5, 9, 10 and did not consider at all cruelty against the humanity and therefore made error of law and jurisdictional error.

[all errors are those of the Notice of Appeal]

21                  The grounds of appeal are confusingly and inconsistently formatted, which gives the impression that they have been produced in a pro-forma fashion with little regard for their relevance to this particular appellant. Ground 2(b) (the first 2(b)), for example, is formatted and worded in identical terms to a ground of appeal in another matter before this Court currently, namely NSD 1014/2009 SZNLB v Minister for Immigration and Citizenship.

22                  For the sake of clarity, the Court will refer to the first ground as ground 1(a) and 1(b) as both grounds refer to s 424 of the Act. The second ground of appeal appears to contain three completely independent grounds of appeal. Consequently, the Court will refer to ground 2 as ground two, ground 2(a) as ground three and ground 2(b) as ground four.

23                  At the hearing of the appeal on 17 November the appellant made no further oral submissions in support of his Notice of Appeal other than saying that the information in the Appeal Book was true. The appellant was asked whether he could provide any clarity on the meaning of the grounds of appeal, particularly ground four. The appellant could not, stating that the Notice of Appeal was prepared by a ‘friend’ and that he did not know what the grounds meant.

FINDINGS

First ground of appeal

24                  The first ground of appeal was not advanced before the Federal Magistrate. Both bases of the first ground of appeal are stated to be pursuant to s 424 of the Act, yet no ground was argued before the Federal Magistrate pursuant to s 424. On that ground alone, the ground is misconceived, as it states that the Federal Magistrate failed to take into account a ground of appeal which was not raised before him.

25                  Given that the ground is a new one, that is, the matter was not raised before the Federal Magistrate, leave is required for the ground to be relied upon: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]-[24]. Accordingly, the Court will examine the merits of the proposed ground of appeal: see Iyer at [24] and VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [27].

Ground 1(a)

26                  The first ground of appeal states:

The Federal Magistrate Court failed to consider the ground of my appeal such as error of law made by the Tribunal failed to comply with s424 of the Migration Act 1958.

a) At The hearing, the Tribunal invited the applicant to give information addition to that which the Tribunal had obtained

i. The Tribunal asked questions which called for information which the applicant had not already provided to the Tribunal, or which the Tribunal had not obtained in another way.

27                  The Court notes that the reference to ‘additional information’ in ground 1(a) appears to refer to s 424 of the Act before it was amended by items 9 and 10 of Schedule 1 of the Migration Legislation Amendment Act (No. 1) 2009 (Cth) on 15 March 2009 as the current version of the section only refers to ‘information’, without the distinction between ‘information’ and ‘additional information’. Nevertheless, the Tribunal’s hearing was completed on 12 March 2009, so at the relevant time the previous version of s 424 was in force.

28                   Regardless of the existence of the distinction between ‘information’ and ‘additional information’, ground 1(a) of the appeal is nonsensical. The ground of appeal states that at the hearing of the appeal before it, the Tribunal sought additional information to that which had been obtained previously. The further explanation provided at i. does no more than repeat what is raised by the ground above it. The reason the ground is nonsensical is because the Tribunal does not seek ‘additional information’ by means of a hearing pursuant to s 424, it invites an applicant to appear before it to ‘give evidence and present arguments relating to the issues arising in relation to the decision under review’ pursuant to s 425 of the Act.

29                  Further, the only time that the phrase ‘additional information’ is mentioned in s 424 is in s 424(2) which refers to the Tribunal’s ability to seek additional information by means of an invitation to a person to provide that additional information. Section 424(3) specifies the requirements of that invitation, namely that it comply with s 441A of the Act. That section outlines the requirements the Tribunal must comply with when providing documents to a person, for example, by means of fax or post. It is an absurdity to suggest that if the Tribunal sought ‘additional information’ in the middle of a hearing that the Tribunal would have to post a letter to the applicant appearing before it requesting that he or she provide additional information in answer to the question being asked of the applicant in the hearing. The Court finds no merit whatsoever in the ground of appeal.

Ground 1(b)

30                  Ground 1(b) states:

The Federal Magistrate Court failed to consider the ground of my appeal such as error of law made by the Tribunal failed to comply with s424 of the Migration Act 1958.

…

b) The Invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act:

i) The invitation did not specify the way in which the additional information may be given.

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

31                  Ground 1(b), by its mention of s 424 of the Act, presumably also seeks to rely on the requirements of s 424(2). It is unclear what the ‘Invitation’ that the ground refers to is, as it cannot be the invitation to the appellant to appear before the Tribunal, as such invitation was pursuant to s 425A of the Act, not s 424.

32                  It is possible that ground 1(b) was drafted with SZNAV & Ors v Minister for Immigration and Citizenship & Anor [2009] FMCA 693 in mind. In that decision, the Federal Magistrate found that the ‘Acknowledgement of Application’ letter (‘acknowledgment letter’) sent to an applicant by the Tribunal acknowledging receipt of applicant’s application was a request for additional information triggering s 424(2) of the Act. In SZNAV [2009] FMCA 693 the Federal Magistrate found that the acknowledgment letter did not comply with the requirements of s 424(3) and s 441A. In the circumstances of these proceedings an acknowledgement letter was sent to the appellant on 24 December 2008.

33                  The decision of SZNAV [2009] FMCA 693was overturned on appeal in Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109. In that decision at [23] the Full Federal Court of Australia stated ‘we do not accept that the acknowledgment letter, in the words of s 424(2) at the relevant time, was an invitation to a person to give additional information’. Further, SZNAV [2009] FCAFC 109 at [21] pointed out that following Minister for Immigration and Citizenship and Another v SZKTI and Another (2009) 258 ALR 434, ‘the difference between ss 424(1) and 424(2) is to be found in the consequences of non-compliance, and not the making of fine distinctions between the Tribunal getting relevant information and inviting a person to give additional information’. Consequently, s 424(2) was never triggered and on whatever basis ground 1(b) is made, such ground has no merit.

Second Ground of Appeal

34                  Similarly to ground one, the second ground of appeal was not raised before the Federal Magistrate. Consequently, the Court will examine the merits of such ground.

35                  The second ground of appeal states:

The grounds of the application are the Tribunal failed to comply with the mandatory procedure prescribed by the Act, in failing to comply with section 424AA (b) (iv) of the Act.

36                  The second ground of appeal refers to s 424AA of the Act which states:

If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a) the Tribunal may orally 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; and

(b) if the Tribunal does so--the Tribunal must:

…

(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

37                  Pursuant to the decision of SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415 at [90], s 424AA of the Act is an optional section that the Tribunal has a discretion to invoke. However, the Tribunal need not comply with the requirements of s 424AA if it complies with s 424A. Therefore, if the Tribunal did not choose to invoke s 424AA, it is not bound by the requirements of s 424AA as a whole and s 424AA(b)(iv) is irrelevant. Even if a Tribunal does fail to comply with s 424AA, such failure does not constitute a jurisdictional error as long as s 424A is followed.

38                  It is not clear, having regard to the Tribunal’s decision (and absent a transcript), that the Tribunal sought to trigger s 424AA. The Tribunal Hearing record of 12 March 2009 has the box ticked ‘No’ in answer to the question ‘Did the applicant request time to comment/respond under ss359AA/424AA?’. Under this box is another box asking ‘Did the applicant request time to provide any other information?’. This box is ticked ‘Yes’. This would suggest that the Tribunal did not invoke s 424AA, as, had it done so, it would be likely that the first box would have been ticked ‘Yes’ (given the appellant requested time to provide information). The Tribunal explained at [91] of its decision that the appellant:

…repeatedly referred in the course of the hearing to the provision of further evidence. He has not indicated what specific evidence he wished to provide, other than a medical report concerning the x-rays he took in December 2006. The Tribunal did not consider such evidence to be necessary as it accepted that the applicant had been involved in an accident at that time. The Tribunal formed the view that the applicant has had ample time since his application was made to provide any evidence to support his claims, whether or not he had to find another person to send such evidence to him. For this reason, the Tribunal determined not to offer the applicant any further time to present evidence.

39                  The Court can find no error with the Tribunal’s decision to not adjourn in the circumstances. Indeed, s 424AA(3)(iv) does not mandate that a Tribunal must adjourn if requested. Rather, it requires it to do so ‘if the applicant reasonably needs additional time’. The Tribunal expressly found that any request for further time would not have been a reasonable need, because the appellant had had more than adequate time to provide such evidence.

40                   Further, as stated, s 424AA(3)(iv) is only relevant if s 424AA as a whole has been invoked, and it does not appear that this was the case. Even assuming that s 424AA was invoked and the Tribunal did not comply with its requirements, the Tribunal did comply with the requirements of s 424A. It sent to the appellant letters pursuant to s 424A on 29 January 2009 and 11 February 2009. Both those letters clearly comply with the obligations placed on the Tribunal by s 424A. Therefore, even if s 424AA was triggered by the Tribunal and the Tribunal failed to comply with the requirements of s 424AA, the Tribunal complied with the requirements of s 424A. Therefore, pursuant to SZMCD, no jurisdictional error was made by the Tribunal and the ground has no merit

Third Ground of Appeal

41                  The third ground of appeal states:

His honour failed to establish that the Tribunal and the Federal Magistrate Court made error in law and jurisdictional error in relation to relief under section 424A of the Migration Act.

42                  The third ground of appeal is curiously worded. Section 424A of the Act does not grant relief, rather, it mandates a procedure for the Tribunal to follow. If the ground is intended to challenge the Federal Magistrate’s response at [25] of his judgment to the first ground of appeal in the original Application, the Court can find no error in the Federal Magistrate’s decision. The Federal Magistrate correctly found that s 424A does not mandate that the Tribunal should put to an applicant general country information, indeed s 424A(3)(a) expressly excludes such information from the requirements of s 424A. Otherwise, as has already been outlined at [40], this Court finds that the Tribunal complied with s 424A.

Fourth Ground of Appeal

43                  The fourth ground of appeal states:

His honour failed to find that the tribunal did not consider UNHCR section 4, 5, 9, 10 and did not consider at all cruelty against the humanity and therefore made error of law and jurisdictional error.

44                  The fourth ground of appeal is even more baffling than the third and the Court has been provided with no clarification by the appellant as to its meaning. No such ground was argued before the Federal Magistrate, so it was not surprising that he would have ‘failed to find’ something in relation to a ground that was never argued before him. Secondly, it is unclear what ‘UNHCR’ refers to in the context of the ground of appeal. The UNHCR is, as far as the Court is aware, the UN High Commissioner for Refugees. There is a UNHCR Statute, however, such statute sets up the functions of the UNHCR, and is not relevant for the purposes of determining protection visa claims. It might be assumed that what the ground intends to refer to is the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees, or together, the Convention. However, a consideration of Articles 4, 5, 9 and 10 of the Convention shows them to be equally irrelevant to a protection visa application.

45                  Further, the ground of appeal suggests a failure on the part of the Tribunal to consider such sections (or articles) of the UNHCR (whatever it may be). However, Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] demonstrates that it is for the applicant to make their case before the Tribunal. Therefore, if the Tribunal failed to consider such sections, the fault was with the appellant who failed to raise such issue before the Tribunal. However, as already suggested, even if such issue were raised, it would have been unlikely to have been at all relevant for the appellant’s application before the Tribunal, because no sections or articles, either in the UNHCR Statute or Convention, appear to be of any relevance.

46                  The appeal is dismissed.

COSTS

47                  The first respondent has sought an order pursuant to O 62 r 4(2)(c) of the Federal Court Rules for costs in the proceedings at a fixed amount of $3,375. Ms Hai-Van Nguyen of Clayton Utz has sworn an affidavit dated 17 November 2009 in support of this order. The Court accepts the costs assessed in the affidavit and the costs order sought will be made.

Associate:

Dated:         20 November 2009