FEDERAL COURT OF AUSTRALIA

SZNWO v Minister for Immigration and Citizenship [2010] FCA 201

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs fixed in the sum of $2575.00.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     The appellant appeals from a judgment of the Federal Magistrates Court of Australia delivered on 24 November 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 6 August 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 23 February 2009.  He is a Tamil of Islamic faith.  On 4 March 2009 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department).  A delegate of the Minister refused the application for a protection visa on 13 May 2009.  On 5 June 2009 the appellant applied to the Tribunal for a review of that decision.

3                     In his application for a protection visa, and at an interview with a delegate of the Minister on 1 May 2009, the appellant said that, after working in Malaysia for 13 years, he returned in August 2007 to his home state of Tamil Nadu in India and started a restaurant business.  On 6 December 2007 a rally to commemorate the demolition of the Babri Masjid was held near the restaurant.  He said that members of the RSS (Rashtriya Swayamsevak Sangh) started throwing stones and bottles, including at the restaurant premises.  He said that all the glasses in the restaurant were broken and other goods were damaged.  He said that, after the police arrived, he was taken to a police station and accused of supplying weapons to some of those involved in the rally.  He said that, in fear that he may be required to surrender his passport, he returned to Malaysia on 18 January 2008.

4                     The appellant said that, on his return to Malaysia, he borrowed money to open a shop.  There was a dispute about repayment of the money and he was threatened by the lender who, the appellant later learned, was the leader of a Hindu organisation in Malaysia.  He said that, later, he was beaten by this leader and four other persons.  He said that this leader would not let him live in Malaysia.  He said that this leader would kill him, even if he repaid the money that the leader demanded from him.  He said that, with the assistance of his uncle in Singapore, he came to Australia.  He said that, whilst he had had a visa to work in Malaysia, he had no present right to return there.  He said that, since he had been in Australia, the police and people in the RSS in India had taken his son and beaten him.  He said that people in the RSS would not allow him to live in India. 

the tribunal’s decision

5                     The appellant appeared before the Tribunal on 20 July 2009 to give evidence and present arguments.  The appellant confirmed that the claims he was making were that, if he returned to India, he would face persecution on the basis of his political opinion and on the basis of his religion, in that he was a Muslim who belonged to the TMMK (Tamil Nadu Muslim Munnetra Kazhagam).  In this connection the appellant confirmed that he would not have any problems in India because of the incidents in Malaysia which he had related. 

6                     The Tribunal did not accept that the appellant was a witness of truth.  It was satisfied, for the detailed reasons it gave, that the appellant had created his claims in order to obtain a protection visa.  The Tribunal was satisfied that the appellant did not flee India fearing Convention-related harm.

7                     The Tribunal then assessed the situation of the appellant as a Muslim from Tamil Nadu, were he to return to India then or in the reasonably foreseeable future.  The Tribunal noted that there was no independent evidence before it to support the appellant’s claim that he would not obtain state protection in India or that such protection would be denied or withheld to an ethnic Muslim from Tamil Nadu.  The Tribunal did not accept that, as a Muslim, the appellant would not have the protection of the authorities in Tamil Nadu should there be random instances of community violence in the future.  The Tribunal was satisfied that the real chance of harm to the appellant in India was remote.

8                     In the end result the Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations under the Refugees Convention.  It found that the appellant did not satisfy the criterion set out in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act) for a protection visa.  The Tribunal therefore affirmed the decision not to grant the appellant a protection visa.

federal magistrates court

9                     By application filed in the Federal Magistrates Court on 2 September 2009 the appellant sought judicial review of the Tribunal’s decision.  In an amended application filed on 2 November 2009, the appellant framed the grounds of the application as follows:

1.       The Tribunal did not give to the applicant before the hearing the independent information that it had about TMMK. The Tribunal used this information (RRT decision record pages 11 to 18). This was against section 424A of the Migration Act 1958.

2.       The Tribunal member had failed to honour his undertaking. The requirement to put information to an applicant is contained in S424A which relevantly states:

424A applicant must be given certain information

1.       Subject to subsection (3), the Tribunal must:

a)   Give to the applicant, in the way that the Tribunal consider appropriate in the circumstances, particulars of any information that the Tribunal consider would be the reason, or a part of the reason, for affirming the decision that is under review; and

b)   Ensure, as far as is reasonably practicable, that the applicant understand why it is relevant to the review and

c)   Invite the applicant to comment on it.

In my case that the Tribunal ignore its undertaking to give me opportunity to make written submission about the inconsistencies in my evidence; therefore the Tribunal had erred by denying me procedural fairness in respect of that issues.

3.       The Tribunal failed to comply with s424 of the Migration Act 1958.

a)      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.

[Errors in original]

10                  The Federal Magistrates Court rejected the first ground of the application on the basis that the independent information before the Tribunal with respect to the TMMK was not information to which s 424A(1) of the Act applied because of the operation of s 424A(3)(a).  In rejecting that ground the Federal Magistrates Court relied on Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92.  The Federal Magistrates Court further held that the Tribunal was under no other obligation at law to give that information to the appellant. 

11                  The Federal Magistrates Court rejected the second ground of the application on the basis that inconsistencies in the appellant’s evidence before the Tribunal were not “information” for the purposes of s 424A(1) of the Act.  In rejecting that ground the Federal Magistrates Court relied on SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 and VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471.  The Federal Magistrates Court noted that, in any event, the Tribunal, in express reliance on s 424AA of the Act, had put these inconsistencies to the appellant at the hearing on 20 July 2009.  Moreover, the Tribunal had informed him that he had the opportunity to comment on or respond to the information that had been put to him; that he could ask for additional time to comment on or to respond to those matters, and that he could request an adjournment to give himself additional time to comment on or to respond to those matters.  The Federal Magistrates Court noted that the appellant responded orally to the matters put to him, and did not seek additional time to comment or to respond. 

12                  The Federal Magistrates Court observed that, save for what the appellant had told the delegate at the interview on 1 May 2009, the Tribunal, in any event, was not obliged to put information to the appellant in the way that it had at the hearing on 20 July 2009.  However, the Federal Magistrates Court found that, by so doing, the Tribunal had committed no error and had effectively discharged its obligations under s 425 of the Act to invite the appellant to give evidence and present arguments relating to the issues arising in relation to the decision under review, particularly in relation to what the court regarded as the central and determinative issue in the disposition of the review, namely, that the appellant was not a witness of truth in giving his factual account. 

13                  Finally in this regard, the Federal Magistrates Court noted that there was no evidence before the court of any undertaking by the Tribunal to give the appellant an opportunity to make written submissions about the inconsistencies in his evidence, as the appellant had pleaded. 

14                  The Federal Magistrates Court rejected the third ground of the application, noting that it was based on an earlier embodiment of s 424 of the Act that was not relevant to the proceeding.  The Federal Magistrates Court noted that, in any event, there was nothing before the court to show that the Tribunal requested information, such that it could be said that there was a breach of s 424(3)(a) and s 424B of the Act. 

15                  The Federal Magistrates Court went further and dealt with and rejected other grounds of review that had been pleaded in the appellant’s application as originally filed in that court, but which were no longer pleaded.  It is not necessary for present purposes to summarise the Federal Magistrates Court’s reasons for rejecting those other grounds. 

16                  Having found no jurisdictional error in the Tribunal’s decision, the Federal Magistrates Court dismissed the application with costs. 

appeal to this court

17                  On 11 December 2009 the appellant filed a notice of appeal in this court.  The notice of appeal identifies a single ground of appeal, framed as follows:

The Federal Magistrate Court failed to consider the ground of my appeal such as error of law made by the Tribunal failed to Honour his undertaking. The requirement to put Information to an applicant is contained in S424A which relevantly states:  

424A applicant must be given certain information

1. Subject to subsection (3), the Tribunal must:

    (a)   Give to the applicant, in the way that the Tribunal consider appropriate in the circumstances, particulars of any information that the Tribunal consider would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)   Ensure, as far as is reasonably practicable, that the applicant understand why it is relevant to the review and

    (c)   Invite the applicant to comment on it.

In my case that the Tribunal ignore its undertaking to give me opportunity to make written submission about the inconsistencies in my evidence; therefore the Tribunal had erred by denying me procedural fairness in respect of that issues.

[Errors in original]

18                  In essence, the appellant claims that the Federal Magistrates Court erred by failing to consider the second ground of the application in that court.

CONSIDERATION

19                  At the hearing of the appeal the appellant was unrepresented but assisted by an interpreter.  He had filed written submissions.  He did not add to those submissions by way of oral argument.  The substance of the written submissions was as follows.

20                  First, the appellant submitted that the Federal Magistrates Court 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 appellant was a refugee within the meaning of the Act and that the Tribunal had erred in failing to give the appellant the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the appellant’s claims were plausible. 

21                  Secondly, the appellant submitted that the Federal Magistrates Court failed to take into consideration the fact that the Tribunal’s decision was unjust and was made without taking into account the full gravity of the circumstances and the consequences of the claim. 

22                  Thirdly, the appellant submitted that the Federal Magistrates Court erred in not considering that the Tribunal made certain findings of fact (which the appellant identified in the submissions) that (he said) were not available to the Tribunal on the evidence.

23                  Finally, in light of the foregoing contentions, the appellant submitted that the Tribunal failed to analyse properly the “future harm” the appellant may face if he had to go back to India.  Hence, in the appellant’s submission, the Tribunal had committed a serious jurisdictional error by failing to carry out the “real chance” test before dismissing his claim.

24                  These submissions raise matters that are not pleaded as grounds of appeal in the notice of appeal.  Indeed, they raise matters that were not pleaded or argued as grounds of the application in the Federal Magistrates Court.  Moreover, the appellant’s written submissions do not address the one ground of appeal that is pleaded in the notice of appeal. 

25                  The appellant seeks leave to raise these matters now as grounds of appeal.  The principles upon which such leave is granted have been discussed recently in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[10] and SZNHY v Minister for Immigration and Citizenship [2010] FCA 51 at [19]-[21].  The appellant was unable to advance any reason why these matters were not raised in the proceeding before the Federal Magistrates Court other than to say that he knows nothing about the law. 

26                  In my view leave should not be granted to raise these matters now.  They do not raise any possible ground of appeal that has reasonable prospects of success.  The appellant’s written submissions simply seek to agitate findings of fact made by the Tribunal and otherwise invite an impermissible review of the merits of the decision that the Tribunal has made:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.  The appellant’s submissions do so in circumstances where, far from finding that the appellant’s claims were plausible, the Tribunal rejected them on the basis that the appellant was not a witness of truth and had created his claims in order to obtain a protection visa.  It is plain from a reading of the record of its decision that the Tribunal gave thorough consideration to all the matters that the appellant had put forward in support of his application.  Its findings on credit meant, however, that the factual foundation for the appellant’s claims was missing.  I should add that, notwithstanding that fact, the Tribunal specifically directed its attention to the appellant’s situation (as it found it to be) should he return to India.  As I have already noted, the Tribunal found that, should he return to India, the real chance of the appellant suffering harm was remote.  Specifically, the Tribunal did not accept that, as a Muslim, the appellant would not have the protection of the authorities should there be random instances of community violence in the future.

27                  The ground that was raised by the appellant in his notice of appeal faces an insurmountable difficulty: the ground of the application that the appellant says the Federal Magistrates Court failed to consider was in fact given detailed consideration by that court.  This difficulty was specifically raised with the appellant at the hearing of the appeal to identify why, in his submission, the Federal Magistrates Court failed to consider this ground of his application. The appellant’s response was:  “If I go back to my country I will lose my life”.  When the matter was put to the appellant again after further explanation, his response was:  “I could only say, your Honour, that if I go back to my country my life will be in danger”.  It is clear that the appellant had no real understanding of the basis on which his appeal had been commenced. 

28                  The ground of appeal has not been made out by the appellant.  The Federal Magistrates Court considered the second ground of the appellant’s application in that court and rejected it.  I would add that the Federal Magistrates Court did not err in its consideration of that ground.  The High Court observed in SZBYR at [18] that, however broadly “information” be defined, its meaning in the context of s 424A is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence; see also VAF at [24]. 

29                  Furthermore, to the extent that the appellant alleges in his ground of appeal that the Tribunal was subject to an undertaking arising independently of the requirements of Division 4 of Part 7 of the Act (and s 424A in particular) to give him an opportunity to make written submissions about the inconsistencies in his evidence, the Federal Magistrates Court noted that there was no evidence to prove the existence of that undertaking:  NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241.  The record of the Tribunal’s decision does not show that any such undertaking was given to the appellant.  What the record does show is that the Tribunal expressly raised with the appellant at the hearing on 20 July 2009 the various inconsistencies in the appellant’s account that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review.  The record shows that the appellant responded to those matters at that hearing.  The record does not show that the appellant asked for additional time to comment on or to respond to those matters or that he requested an adjournment for that purpose, even though an invitation in those terms had been made to him.  In the circumstances it is not necessary for me to consider whether an undertaking of the kind postulated can arise independently of the requirements of Division 4 of Part 7 of the Act: see s 422B(1).     

DISPOSITION

30                  The appeal should be dismissed with costs.

Associate:

Dated:         11 March 2010