FEDERAL COURT OF AUSTRALIA

SZJOG v Minister for Immigration and Citizenship [2010] FCA 244

THE COURT ORDERS THAT:

1.                  The appeal 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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     The Appellant is a citizen of India who arrived in Australia in September 2004. On 8 November 2004 he applied for a Protection (Class XA) visa.

2                     A delegate at what was then the Department of Immigration and Multicultural and Indigenous Affairs refused that application by letter dated 21 December 2004. Thereafter, the Appellant applied for review by the Refugee Review Tribunal on or around 19 January 2005. That review process has suffered a chequered history — the Appellant having been before the Refugee Review Tribunal on three occasions. On each occasion the Tribunal was differently constituted. The first two decisions of the Tribunal were quashedby the Federal Magistrates Court.

3                     On 16 May 2009 the Tribunal whose decision is now in issue affirmed the decision not to grant the protection visa which had been applied for some years earlier. In doing so the Tribunal made a number of findings adverse to the now Appellant. It concluded that he had given “inconsistent evidence” in respect to at least one matter and that in another respect he had been “evasive and unforthcoming” in his evidence. Another conclusion was made that he had “fabricated his claims” regarding his involvement in a Tamil political movement.

4                     On 21 October 2009 a Federal Magistrate dismissed the application seeking review of that decision of the Tribunal: SZJOG v Minister for Immigration (“SZJOG”) [2009] FMCA 1095.

5                     The Notice of Appeal filed on 4 November 2009 set forth (without alteration) the Grounds of Appeal as follows:

1.   The honourable FM failed to consider the grounds of my application such as error of law made by the Tribunal, The Court below erred in that it ought to have found that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the Act.

2.   Te Tribunal was un satisfied that there is a real chance that I would suffer harm amounting to persecution if I return to India, This is a serious Jurisdictional error made by the Tribunal

6                     The Appellant appeared before this Court unrepresented. He was accompanied by an interpreter.

7                     The appeal is to be dismissed.

8                     The solicitor who appeared for the Respondent Minister contended at the outset that the Notice of Appeal raised new arguments that were not previously the subject of decision by the Federal Magistrate and that leave to raise such new grounds was required. He properly accepted that leave to raise new grounds can be given “if it is expedient in the interests of justice to do so”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158at [46] per Kiefel, Weinberg and Stone JJ.

9                     Notwithstanding the merit of that submission, it is considered that the Grounds as now sought to be advanced on appeal have at least some similarity with the arguments resolved by the Federal Magistrate. It is thus preferable to resolve the Notice of Appeal on its merits. That course was not opposed.

A Failure To Consider the Grounds Advanced

10                  The first purported Ground of Appeal, nevertheless, suffers from a number of defects. The argument sought to be embraced within its terms is not self-evident. The now Appellant, with respect, was unable through the interpreter to provide further assistance other than to generally contend that his evidence had been disregarded.

11                  To the extent that the first Ground seeks to advance a contention that the Federal Magistrate “failed to consider the grounds of my application”, the argument is without substance.

12                  The bases upon which the now Appellant sought to advance his case before the Federal Magistrate were also not as clearly expressed as may have been desired. The amended application as filed in the Federal Magistrates Court on 12 August 2009 set forth the “amended grounds” (again without alteration) as follows:

1.   That RRT failed to complete the exercise of its jurisdiction;.

2.   That the decision led to the omission of principles of natural justice while making a decision.

“Particulars” were then set forth to expand upon the second ground.

13                  The Federal Magistrate in his reasons for decision set forth these groundsand the particulars.

14                  In respect to the contention that that the Tribunal “failed to complete the exercise of its jurisdiction”, the Federal Magistrate observed that no particulars were provided “and in their absence it would be wrong for the Court to try and guess what the applicant may have meant”: SZJOG [2009] FMCA 1095 at [9].

15                  It is certainly the case that many persons who apply for review of adverse decisions by the Refugee Review Tribunal, and who subsequently pursue litigation before the Federal Magistrates Court and this Court, are unrepresented. The legal difficulties they confront cannot be underestimated. It is equally the case that it is not the function of the Federal Magistrates Court or this Court to attempt to formulate a case that a litigant – if represented –may have pursued and to then proceed to resolve that case.

16                  In the present proceeding and, given the manner in which he proceeded, the Federal Magistrate was correct to make the observation that he did. The role to be assumed by a Federal Magistrate confronted with an unrepresented litigant is unenviable. The role of courtsconfronted with unrepresented litigants has received repeated but sometimes possibly conflicting responses. In Neil v Nott [1994] HCA 23, 121 ALR 148 at 150, for example, Brennan, Deane, Toohey, Gaudron and McHugh JJ observed:

A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.

See also: Nipperess v Military Rehabilitation and Compensation Commission [2006] FCA 943 at [51], 43 AAR 252 at 262. But it has also been said that a “court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent”: Vaeula v Minister for Immigration and Multicultural and Indigenous Affairs (“Vaeula”) [2004] FCAFC 147 at [59] (applying Rajski v Scitec Corp Pty Ltd (Unreported, NSWCA, Kirby, Samuels and Mahoney JJA, 16 June 1986). As Beaumont, Conti and Crennan JJ there observed, “it is difficult to generalise in this area where unrepresented parties appear”: Vaeula, supra at [58]. See also: Platcher v Joseph [2004] FCAFC 68 at [104] to [112] per Tamberlin and Emmett JJ; SZIBY v Minister for Immigration and Citizenship [2007] FCA 1974 at [8]. Perhaps such differences as are apparent are but differences of emphasis and not substance.

17                  Short of attempting to formulate a ground of review that an unrepresented litigant may have open to him, however, it would not be inappropriate for a Federal Magistrate in reviewing migration decisions to raise with those appearing for the Respondent Minister such concerns as may be readily apparent on the face of the documents available to that Court. Such concerns may be easily susceptible of explanation. The standards imposed upon those appearing for the Minister are those of the “model litigant”. Where there is obvious error exposed in such a manner, it would be hoped that orders could be made by consent to remedy the error. In the present proceeding, the solicitor appearing for the Respondent Minister did not advance any contrary position.

18                  And experience to date indicates that such is frequently the course pursued by both Federal Magistrates and those appearing for the Minister. The present proceeding is no exception. On the first two occasions upon which the present Appellant appeared before the Federal Magistrates Court, orders were made by consent quashing the decision of the Tribunal.

19                  Whatever may be the appropriate role of the Federal Magistrate in entertaining applications to review decisions made under the Migration Act, it is considered that this Court, when entertaining an appeal, should adopt an appropriate degree of reservation in further attempting to formulate grounds of appeal for an unrepresented appellant, especially grounds which were not advanced before aMagistrate. A failure to exercise caution risks extending to an unrepresented litigant a “positive advantage” over the represented Minister or giving the appearance of extending such an advantage. It may also imperil the appellate role performed by this Court by encouraging unrepresented litigants to abandon arguments that proved unsuccessful at first instance and to advance new or different arguments on appeal.

20                  Such matters need not presently be pursued further.

21                  Although no error is exposed in the present proceeding by the Federal Magistrate declining to “guess what the applicant may have meant”, it is in any event apparent from the reasons for decision of the Federal Magistrate that he did in fact consider the entirety of the material before him, including the Tribunal decision, before an order was made affirming the decision of the Tribunal.

22                  The Ground of Appeal that alleges that the Federal Magistrate “failed to consider the grounds of my application” is rejected. 

23                  If this Ground was intended to be a reference to the Federal Magistrate declining to “guess what the applicant may have meant”, that argument has been considered and rejected. If this Ground is intended to also refer to the remaining arguments as advanced before the Federal Magistrate, the Ground is equally without substance. The Federal Magistrate addressed each of the arguments embraced by the “particulars”. It is simply not correct to contend that he failed to “consider the grounds of my application”. Nor can any error be discerned in the manner in which he resolved the arguments advanced.

24                  A further difficulty with the first Ground of Appeal as advanced in this Court is the reference to “error of law”. There was no express reference to any such ground in the amended application as advanced before the Federal Magistrate. Nor was the now Appellant able to give any further content to the alleged “error of law” during the course of his oral submissions. Nor is any “error of law” readily apparent on the face of the documents presently available.

25                  The first Ground of Appeal concludes by contending that the Federal Magistrate “ought to have found that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the Act”. But that was not the function entrusted by the Commonwealth legislature to the Federal Magistrates Court. It is the Tribunal that makes the relevant findings of fact. No comparable fact-finding function is entrusted to a Federal Magistrate.

26                  The first Ground of Appeal is rejected.

A Real Chance of Persecution

27                  The second purported Ground of Appeal identifies no ground in respect to which it is said that the decision of the Federal Magistrate was in error. It merely identifies a “ground” in respect to which the Tribunal is said to have erred. But such matters may presently be left to one side.

28                  Also left to one side is the uneasy discrepancy between the way in which the argument was expressed before the Federal Magistrate and the Ground of Appeal as now framed. Before the Federal Magistrate, a “Particular” in respect to the “natural justice” ground as then advanced and, indeed, as further particularised, was expressed as follows:

The RRT failed to satisfy itself upon whether the applicants had a well-founded fear of persecution based upon probative material or logical grounds:

Particulars:

The situation of the pro LTTE political activities was not taken into account in spite of the independent country information report mentioning the independent Tamil revolutionary struggle launched by TNLA against the state.

Notwithstanding the discrepancy, it is understood that the now Appellant wishes to take issue with the manner in which the Tribunal reached its conclusion that he did not have a well-founded fear of persecution for a Convention reason and the factual basis upon which that conclusion was made.

29                  However expressed, the Ground is rejected.

30                  An essential element of the now Appellant’s claim for a protection visa was the fact that he had witnessed the murder of a prominent member of society in 1991 by “rebels of Thevar community”. He gave evidence against the perpetrators in their prosecution. He claimed that members of that community “got angry with my family and me”. He claimed in his statutory declaration that “the sufferer families got vengeance on my family and some of them came to my house and attacked my wife and me brutally”. A further history of violence was also set forth. Claims were later advanced that the now Appellant also had an involvement with the Tamil political movement.

31                  As explained to the Tribunal, the Appellant belonged to the Kammavaar Naidu community. He claimed that this community was “one of the backward communities in India”. But in the district in which he lived it was the Thevar community that dominated. He claimed that he would be killed by the “Thevar community rebels”.

32                  The decision of the Tribunal of 16 May 2009, being the decision affirmed by the Federal Magistrate whose decision is now under appeal, referred in detail to the claims advanced and the decisions of the prior two Tribunal decisions. Evidence relied upon wasrecounted before the Federal Magistrates Court, including a letter dated 27 November 2008 and three statutory declarations supporting the now Appellant’s claims. Also recounted was the text of a letter forwarded by the Tribunal on 15 December 2008 pursuant to s 424A of the Migration Act 1958 (Cth). That letter referred (inter alia) to the concern that the Tribunal had in respect to the now Appellant’s claimed involvement in a Tamil political movement in circumstances where there had been no mention of any such involvement in the original application for a protection visa. An undated response to that letter was received by the Tribunal on 7 January 2009. A hearing before the Tribunal was held on 14 January 2009 and occupied some three hours.

33                  The Tribunal in its reasons for decisions of 16 May 2009 recounted the evidence given. Any submission advanced by the Appellant that the Tribunal had disregarded his evidence is without merit. The simple fact is that the Tribunal recounted his evidence and made findings in respect to that evidence.

34                  The Tribunal ultimately resolved the claims being advanced (in part) as follows:

[93]. I do not accept that, as the applicant claims, he was a member of a Tamil political movement variously named as the Tamil National Army, the Tamil Liberation Movement, the Tamil National Liberation Army Movement or the Tamil National Liberation Army (TNLA) which was in its turn associated with the LTTE. I do not accept that the applicant supplied members of the TNLA or the LTTE with milk and food or other materials, nor that he issued pamphlets, spoke on platforms or distributed books and notes on behalf of the TNLA. I do not accept that he was ever arrested or charged with any offence in India or detained unlawfully or beaten or tortured by the police as a result of his claimed involvement in such a Tamil political movement. I do not accept, in particular, that, as indicated by the document which the applicant submitted to the Tribunal and as the applicant claimed in his undated response to the Tribunal’s section 424A letter dated 15 December 2008 handed to the Tribunal on 9 January 2009, in August 2003 the applicant was charged with an offence or offences under the Unlawful Activities (Prevention) Act 1967 relating to supplying food to members of the LTTE, nor that he was released on bail on 14 August 2003 on condition that he report daily to the Kamuthi Police Station, nor that this case is still pending in court. I do not accept that there is a real chance that the applicant will be arrested or otherwise persecuted by the authorities in Tamil Nadu for reasons of his real or imputed political opinion if he returns to his home in Tamil Nadu now or in the reasonably foreseeable future.

[94]. I accept that the applicant witnessed the murder of a village leader, Mr Mookaiah Naicker, and that he subsequently gave evidence against the murderers. As I put to the applicant in the course of the hearing before me, I do not consider that his fear that the murderers or members of the Thevar community will take revenge on him for giving evidence against them brings him within the definition of a refugee. This is because one or more of the five reasons set out in the Refugees Convention – his race, religion, nationality, membership of a particular social group or political opinion – is not the essential and significant reason for the persecution which he fears as required by paragraph 91R(1)(a) of the Act. While I accept that the applicant belongs to the Kammavaar Naidu community, also called Naicker, and that the persons whom he fears belong to the Thevar community, I consider it clear from his account that their motivation in seeking to harm him is his role in giving evidence against the murderers of Mr Mookaiah Naicker, not his membership of the Naicker community.

35                  These findings were findings of fact open to be made on the evidence available to the Tribunal. Findings of fact, it has been repeatedly said, are matters entrusted to the Tribunal alone: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552, 559; SZNNK v Minister for Immigration and Citizenship [2009] FCA 1386 at [20]. “It is not for this Court to reconsider the Tribunal’s factual findings…”: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [81], 156 FCR 419 at 440 per Young J (Gyles and Stone JJ agreeing).

36                  It should, perhaps, be further observed that there is no reason to question the findings of fact as were made by the Tribunal with reference to the evidence before it. The evidence relied upon was “probative” and no “want of logic” is discernible. And, in any event, where inferences are open, even “illogical reasoning” may not be susceptible to judicial review: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Mason CJ there observed at 356:

But it is said that “[t]here is no error of law simply in making a wrong finding of fact”: Waterford v The Commonwealth [(1987) 163 CLR 54 at 77], per Brennan J. Similarly, Menzies J observed in Reg v District Court; Ex parte White [(1966) 116 CLR 644 at 654]:

“Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.”

Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

See also: NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [22] per Tamberlin, Emmett and Weinberg JJ; SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 at [14] to [17] per Tamberlin J.

37                  But jurisdictional error on the part of the Tribunal may be exposed if a conclusion is open that the Tribunal has failed “to attend conscientiously and appropriately to its statutory obligations”: SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192. Allsop J (as His Honour then was) there summarised the position in the following manner:

[8] The structure of the legislation, being the Migration Act and in particular s 474 of that Act, as interpreted by the High Court in Plaintiff S 157 of 2002 v Commonwealth (2003) 211 CLR 476 only entitles the Federal Magistrates Court or this Court to interfere with what the Tribunal has done if there is found to be what is referred to as jurisdictional error.

[9] What that means is as follows: the error to be demonstrated as committed by the Tribunal must be one that reveals a failure to carry out its statutory task. That is, it must be shown that the statutory authority and duties placed upon the Tribunal have not been complied with. Examples of that kind of error are as follows: that the Tribunal has misunderstood the correct question that it should be dealing with; that the Tribunal has failed to deal with the claims as they are put by the applicant; that the Tribunal has failed to afford the applicant procedural fairness in the way it dealt with the matter; that the Tribunal failed to take into account a consideration the law made compulsory to consider; and that the Tribunal took into account a consideration that the law made compulsory not to consider.

His Honour, however, continued as follows:

[10] These are the main examples. Conformably with High Court authority, factual error is rarely reflective of jurisdictional error. There may be circumstances where findings of fact are such as to demonstrate that the Tribunal has misunderstood its task. There may be circumstances where the findings of fact are so irrational or capricious as to display a failure of the Tribunal to attend conscientiously and appropriately to its statutory obligations.

No jurisdictional error, it may be noted, was there found by Allsop J. Jurisdictional error was, however, found by Logan J in SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470. His Honour was satisfied that there was “error on the part of the Tribunal in failing truly to engage with the claim as presented by the visa applicant”.

38                  The difference between a conclusion that there has been a wrong finding of fact or an illogical inference of fact, on the one hand, and a conclusion that the Tribunal has failed “to attend conscientiously and appropriately to its statutory obligations”, is perhaps a matter of degree. Although this Court should properly refrain from simply disagreeing with factual conclusions as reached by the Tribunal merely upon the basis that it would or may have reached a different conclusion, where this Court can reach a conclusion that the findings of fact as made by the Tribunal are “so irrational or capricious” as to display a failure on the Tribunal to discharge its statutory obligations, the Court should not hesitate to interfere.

39                  But no jurisdictional error is exposed by the Tribunal making the findings of fact it made in the present proceeding. The findings of fact as were made by the Tribunal whose decision was reviewed by the Federal Magistrate were findings available on the evidence before the Tribunal. The present appeal is thus not the occasion to explore the circumstances in which a finding of fact may be founded upon evidence so lacking in probative force that a conclusion can be reached that the Tribunal has not discharged its statutory responsibilities in accordance with law. Any such conclusion would obviously have to be dictated by the facts and circumstances of each individual case.

Conclusions

40                  No appellable error is discernible in the reasons for decision of the Federal Magistrate. The appeal is to be dismissed.

41                  There is no reason why the Appellant should not pay the costs of the First Respondent.

ORDERS

42                  The Orders of the Court are:

1.                  The appeal is dismissed.

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

Associate:

Dated:         18 March 2010