FEDERAL COURT OF AUSTRALIA

SZNZK v Minister for Immigration & Citizenship [2010] FCA 651

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  There be no order as to costs.

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 an Indian citizen from the state of Kerala which is in southern India.  His native language is Malayalam which is one of the four major Dravidian languages of southern India.  In the proceeding before me he appeared unrepresented but assisted by an interpreter.  In the events which transpired the appellant’s English was sufficiently fluent not to require the intercession of the interpreter. 

2                                             The appellant is presently 21 years old and is a practising Catholic.  He was born in the city of Trivandrum.  He was educated at St Joseph’s school in the same city.  He commenced tertiary studies in 2006 – Trivandrum is a known academic centre – but did not complete them.

3                                             The appellant and his family are members of the Mukkuvar caste who are fishermen living in the coastal districts of Kerala. There is a useful description of this caste and its customs in Mr Edgar Thurston’s excellent work Castes and Tribes of Southern India (1909) vol V, which notes that they are not only boatmen but palanquin bearers too.   More significant for present purposes is the fact that most of the Roman Catholics living in Trivandrum belong to the Mukkuvar caste: S Ponnumuthan The Spirituality of Basic Ecclesial Communities in the Socio-Religious Context of Trivandrum/Kerala, India (1996) pp 75-76.  The Catholicism of the Mukkuvar arises from the missionary activities of St Francis Xavier who converted many along the Travancore coast in the 16^th century: op cit 126-127. 

4                                             Understandably, therefore, the appellant is of that faith.  He claims to have been subject to persecution in Kerala because of it.  Although the matter is not altogether clear it appears to have been the appellant’s contention that the persecution he suffered necessitated his departure from India and that this escape was facilitated by his parish priest who sent him on a pilgrimage to Sydney to attend the festivities associated with World Youth Day 2008.  As the Full Court of this Court noted in Evans v State of New South Wales [2008] FCAFC 30 at [1] per French, Branson and Stone JJ, that event ran from 15 July 2008 to 20 July 2008.  It is a matter of public notoriety – and one of which I take judicial notice – that it attracted many hundreds of thousands of young pilgrims to Sydney and concluded with the celebration of a Pontifical mass at the Randwick Racecourse on a day of indifferent weather.

5                                             The appellant arrived in Sydney on 9 July 2008 in the week leading up to that festival.  He travelled on an Indian passport and was permitted entry into Australia having previously been granted a visitor’s visa back in May 2008, no doubt, in anticipation of his pilgrimage.  When the festival finished the appellant did not, however, return to India.  Instead, on 19 August 2008 he applied for a protection visa which is the kind of visa issued to those to whom the Commonwealth determines that it has obligations of protection under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees.  At the risk of over-simplification such a visa may be issued to a person who has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

6                                             The power to issue such a visa resides in the Minister for Immigration and Citizenship (“the Minister”) who is the first respondent in this proceeding.  As might be expected he has delegated that power to various officials within his Department.  On 12 November 2008 one such delegate decided that the appellant’s application for a visa should be refused.  The appellant had the right thereafter to apply to the Refugee Review Tribunal for a review of that decision.  When the Tribunal carries out such a review its decision is taken afresh and stands in the place of the original decision.  The appellant applied for such a review on 5 December 2008. 

7                                             The Tribunal, in circumstances to which will be shortly necessary to return, carried out two hearings both of which were attended by the appellant.  On 28 September 2009 it determined that it would affirm the delegate’s original decision to refuse the appellant a protection visa.

8                                             The law does not provide for any further administrative review of the Tribunal’s decision.  However, as with all officers of the Commonwealth – apart from the Justices of the High Court itself (see The King v Murray and Cormie; Ex parte The Commonwealth (1916) 22 CLR 437 at 452 per Isaacs J; Re the Honourable Justice Sir Gerard Brennan; Ex parte Muldowney (1993) 67 ALJR 837 at 839 per Mason CJ) – the members of the Tribunal are amenable to prerogative (or constitutional) relief to ensure that they neither exceed their powers nor shirk their duties.  The jurisdiction to entertain such claims is vested by the Constitution in the High Court directly by s 75(v) but also, perhaps more mundanely, in the Federal Magistrates Court by s 476(1) of the Migration Act 1958 (“the Act”).   It goes nearly without saying that the issues which arise in such proceedings do not concern whether a protection visa should or should not be issued.  That question is one for the Executive branch of government acting through the Minister, his delegates and, of course, the Tribunal.  The Federal Magistrates Court is confined, in contradistinction, to inquiring into the obedience of the Tribunal to the limits of its authority.  There need be, therefore, no correlation between substandard decision making on the part of the Tribunal and disobedience by it to the limits of its jurisdiction. 

9                                             The appellant commenced proceedings in the Federal Magistrates Court on 23 October 2009 against the Minister and the Tribunal seeking the issue of a notice requiring the Minister to show cause why the Federal Magistrates Court should not exercise its powers to grant prerogative relief.  

10                                          That application was ultimately returnable for trial on 11 March 2010 before Federal Magistrate Raphael.  The appellant pursued three grounds for the grant of that relief.  They were that:

(a)        the Tribunal had breached s 425 of the Act;

(b)        the Tribunal had breached s 414 of the Act; and

(c)        the Tribunal had failed to consider the appellant’s claim or had otherwise misconstrued it.

11                                          The learned Federal Magistrate considered each of these arguments and dismissed them.  He dealt with the argument in (a) at paragraphs [11]-[16] of his reasons for judgment, the argument in (b) at paragraphs [17]-[19] and the argument in (c) at paragraphs [20]-[22].  Having rejected all three grounds, he dismissed the appellant’s application: SZNZK v Minister for Immigration & Anor [2010] FMCA 186 at [24].

12                                          Provision for appeal to this Court from decisions of the Federal Magistrates Court of the present kind is made by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth).  By reason of s 25(1AA) of the same Act that jurisdiction is generally exercised by a single judge as it was on this occasion.   The appellant filed an appeal to this Court on 31 March 2010.  That appeal sought the setting aside of the decision of the Federal Magistrates Court.

13                                          The two grounds disclosed in the notice of appeal are:

(a)        that the Federal Magistrate failed to consider the grounds of the appellant’s application to that Court such as the error of law made by the Tribunal; and 

(b)       the Tribunal was not satisfied that there was a real chance that the appellant would suffer harm amounting to persecution if he returned to India.  

14                                          I do not think that the first ground can be sustained.  The application made by the appellant to the Federal Magistrates Court was superseded by an amended application on 20 January 2010.  It sought the issue of writs of certiorari, mandamus and prohibition against the Tribunal on the grounds identified above.  Since the Federal Magistrates Court plainly did deal with those grounds in the paragraphs I have cited above it follows that the first ground must be rejected.  

15                                          As to the second ground, it does not disclose any error cognizable before this Court.  It may well be that some might think the Tribunal wrong in its conclusions about the appellant – I make no comment in that regard – but this would not demonstrate jurisdictional error by the Tribunal.  That observation would suffice in itself to dispose of the appeal.  However, although it was not suggested by the appellant it is nevertheless appropriate to consider whether the Federal Magistrates Court erred in law in the way in which it dealt with the three grounds before it.  

16                                          The first ground in that Court was as follows:

1. The Tribunal breached s 425 of the Act.

a.         Section 425(2)(a) of the Act requires the Tribunal to consider whether it should decide the review in the Applicant’s favour on the basis of the material before it (“First Decision”).

b.         The “material before it” includes the information sent by the Secretary pursuant to s 418 of the Act and other material.

c.         The Tribunal made the First Decision prior to considering the “material before it.”

d.         In doing so the Tribunal breached s 425 of the Act, amounting to jurisdictional error.

17                                          Section 425 of the Act provides:

Tribunal must invite applicant to appear

(1)       The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)       Subsection (1) does not apply if:

 (a)      the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

  (b)     the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

              (c)      subsection 424C(1) or (2) applies to the applicant.

(3)       If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

18                                          The issue arises this way.  In circumstances to which I shall return, the reasons for decision of the original delegate set out in full the statement, not of the appellant, but instead of some other person having no connection with the appellant apart from being Indian, Catholic and having attended World Youth Day.  The delegate’s decision formed part of the Departmental file which was then provided to the Tribunal pursuant to s 418.  Section 418 is in the following terms:

Secretary to be notified of application for review by Refugee Review Tribunal

(1)       If an application for review is made to the Refugee Review Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.

(2)       The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:

(a)       sets out the findings of fact made by the person who made the decision; and

(b)               refers to the evidence on which those findings were based;

(c)               gives the reasons for decisions.

(3)       The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.

19                                          The Tribunal was required by s 425 to make a decision whether to hold a hearing.  The Tribunal, in fact, decided that it did need to afford the appellant a hearing.  The learned Federal Magistrate apprehended that the argument was that “the Tribunal made the decision not to grant him a protection visa on the papers and to give him a hearing on the basis of material which contained the wrong statement”: SZNZK v Minister for Immigration [2010] FMCA 186 at [13].  I think, with respect, that the argument may have been slightly different in that the suggestion was that the material referred to in s 425(2)(a) had to be the same material referred to in s 418(2).  Since the material in s 418 had not been sent (on the argument that the material which was sent contained the wrong statement) the power in s 425 had not arisen.  This is a conceptually distinct argument from the notion that the decision of s 425 was made on the incorrect material.

20                                          However, I do not think that the difference affects the correctness of the Federal Magistrate’s decision.  Plainly, as the learned Federal Magistrate found, s 425 is a provision inserted for the benefit of applicants.  I do not see that an error in the performance of a function under s 418 by the Secretary can result, at least without something more, in a jurisdictional error by the Tribunal.   This is particularly so where it has been held that the breaches of s 418 are not jurisdictional errors: Applicant S1693 of 2003 v Refugee Review Tribunal [2004] FCA 1512 at [41] per French J.   This is a sufficient reason to reject the argument. 

21                                          The second ground was as follows:

(2)        The Tribunal breached s 414 of the Act.

Particulars:

(a) Section 414(1) of the Act requires the Tribunal to review an RRT-reviewable decision when an application is made under s 412 of the Act;

(b) The obligation to review requires the Tribunal to review the file provided to the Tribunal by the Secretary under s 418(3) of the Act;

(c) The Tribunal should have reviewed the file before it made the First Decision;

(d) The Tribunal made the First Decision prior to reviewing the file;

(e) In so doing, the Tribunal breached s 414 of the Act, amounting to jurisdictional error.

22                                          Section 414 provides:

Refugee Review Tribunal must review decisions

(1)       Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.

(2)           The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).

23                                          The argument is that the obligation to conduct a review under s 414 required the Tribunal to review the decision and that this meant that it had to have the correct file before it.   The learned Federal Magistrate was satisfied, as a matter of fact, that the Tribunal did indeed review the correct file and I can see no reason to interfere with that factual conclusion.  No doubt what took place before the delegate was less then satisfactory (as these reasons will show) but the Tribunal did not make the same mistakes.  It was open to the learned Federal Magistrate to find that the Tribunal acted on the correct file.  No reason is, therefore, shown for disturbing the Federal Magistrates’ conclusion to that effect.  

24                                          The third ground was as follows:

(3)       The Tribunal failed to consider or otherwise misconstrued or misunderstood the Applicant’s claims.

Particulars:

The Tribunal rejected the Applicant’s claims concerning the land/soil mafia on the basis that he had not raised the attacks in 2006, 2007 and 2008 in the statement he submitted to the Minister’s Department (“Department”) (CB109 at [108]). However, the Applicant raised an attack on him by the land/soil mafia (or persons engaged by them) in 2006 in that statement (CB37.6ff). The Tribunal therefore failed to consider the Applicant’s claims or otherwise misconstrued his claims as put to the Department.

25                                          It is not necessary to set out the nature of the land/soil mafia.  The short fact is that the appellant’s statement contained references to him having been attacked by that particular mafia in 2006.  The Tribunal reasoned as follows (at [108]):

The applicant has claimed that he was attacked in January 2006 or January 2007 after he fought against the soil/sand mafia. The applicant has also claimed that he was attacked twice in January 2008, that he was attacked in Kazhakuttam in April 2008 and that he was identified as a troublemaker because of a picketing incident at this time. The Tribunal drew to the applicant’s attention that there had been no mention of these attacks in his statement to the Department. It does not accept that the reason that the details were not included in the statement was because he did not know what to write in the statement, he did not know how to prepare a statement or he did not consider them significant.

(emphasis added)

26                                          Like the learned Federal Magistrate, I would read “no mention of these attacks” as a reference to the attacks referred to in the previous sentence, this is, to the 2008 attacks.  Whilst the phrase is capable of referring both to the 2006 attacks and to the other attacks the Tribunal (unlike the delegate) had access to the appellant’s statement and had read it.   Since that statement does refer to a 2006 attack by the land/soil mafia this means that it is unlikely the Tribunal was intending to refer to the 2006 attacks.

27                                          Accordingly I would uphold the Federal Magistrate’s treatment of the third ground.

28                                          I turn then to a matter raised during the hearing which is a cause for disquiet.  Putting the manner in a fashion which favours clarity over precision it appears that the delegate who dealt with the appellant’s application for a protection visa, in fact, dealt not with his application but with some other person’s application.   Two issues arise: first, whether as a matter of fact this is the case; secondly, assuming that it is, whether the Tribunal had jurisdiction to entertain the appellant’s review application.

Facts

29                                          The facts are as follows.  The appellant lodged his application on 19 August 2008 and he was interviewed by the delegate on 9 October 2008.  The appellant provided a statement to the delegate two pages in length and tightly spaced.  Important matters which the statement did not include were as follows:

(a)        he did not suggest that he was being persecuted by a political party called Bharatiya Janatha Party (BJP) because he was a Christian;

(b)       he did not suggest he had a political affiliation with the Students’ Federation of India (the SFI), the Democratic Youth Federation of India (the DYFI), the Youth Wing of the Communist Party or the CPI-M, that is, the Communist Party of India – Marxist.  Indeed, he suggested that he was not a member of the SFI or the DYFI but, was instead being persecuted by those parties; 

(c)        he made no allegation that he was being persecuted by reason of his membership of the Kerala Catholic Youth Movement (KCYM); and

(d)       he did not suggest that he was being persecuted by the BJP by reason of the political association with the SFI, DYFI or CPI-M no doubt because he did not claim to be associated with them. 

30                                          I make the point of what the appellant’s statement did not say to contrast it with what the delegate summarised it as saying.  I record that I am indebted to Ms Sirtes, who appeared for the Minister, for very properly bringing what the delegate did say to my attention.  The delegate put the matter this way:

Claims

The applicant fears he will be persecuted by the BJP authorities because of [sic] he is a Christian and because of his political affiliation with the CPI-M and the KCYM in India.

31                                          This suggests that the delegate understood the appellant to be claiming persecution by reason of his membership of his CPI-M and KCYM whereas, in fact, he seemed to be claiming no such thing.

32                                          One does not need to search very far to uncover the source of this serious misconception.  The delegate was good enough to set out in full the statement of the appellant in his reasons and to quote from it, as he put it, “verbatim”.  The difficulty is that the statement set out is not the appellant’s statement at all but rather the statement of another young man of about the same age, also from Kerala, also Catholic and who was also in this country for World Youth Day 2008.  That statement suggests that that other person was being persecuted by the BJP because of his membership of the CPI-M and KCYM.

33                                          It appears, therefore, that the claim which the delegate understood himself to be examining was not the appellant’s claim but someone else’s.  There are some things which may be said against that conclusion.  First, the delegate did, at least, get the name of the appellant correct on the front page of his reasons for decision, together with other sundry matters such as his passport number which is, I suppose, encouraging in some ways.  Secondly, the delegate correctly identified the location of the appellant’s statement in the Departmental file and his claim in the broadest of terms as follows:

The applicant’s statement of claims is held at folios 18-19 of departmental file CLF 2008/121862.  The applicant is a 20 year old single male born in Kerala, India.  The applicant resides in Kerala, India, since birth.  He departed for Australia, to attend World Youth Day, on 9 July 2008.

When the applicant applied to the Australian High Commission in New Delhi, he lodged supporting documentation stating that he was part of the Catholic Bishops Conference of India (CBCI) contingency member who was travelling to Australia as a pilgrim (confirmed through Egeria Admin Website).

The applicant claims to be seeking protection in Australia so that he does not have to return to India.  He claims that he does not wish to live in India any further as he cannot live in peace and practice his Christian religion. 

34                                          Thirdly, he correctly identified a concern of the appellant that he would be attacked by the SFI and DYFI (although he did this on the very same page as concluding that he was a member of the CPI-M, the parent body of the DYFI).  Fourthly, it is plain that the delegate did interview the appellant and did ask him questions about his statement. 

35                                          None of these matters, however, is able to dispel my distinct impression that the delegate did not act on the correct statement.  My reasons for this are as follows.  Whilst it is true that the delegate did get the name of the appellant correct together with other sundry information concerning him, it is apparent that this information came from the appellant’s application form – no doubt situated on the Departmental file – for these matters do not appear in his statement.  The general description of the claim is also evidently drawn from Departmental information.   Significantly, all of these matters are set out in that part of the delegate’s decision appearing before the setting out of the incorrect statement.   It is after the statement that matters go awry.

36                                          I accept that the third and fourth matters show that the delegate must have turned his mind, at least in some respects, to the appellant.  But aspects of that are troubling too.  For example the delegate said in the course of setting out why he disbelieved the appellant:

There were numerous discrepancies between the applicant’s statement of claims and his interview responses.  

37                                          It would hardly be surprising that there were discrepancies between the appellant’s evidence at the interview and the statement if, as appears to have been the case, the statement the delegate was looking at was not the appellant’s.  

38                                          Ordinarily, it might be possible to determine from the balance of the reasons of a delegate what the actual process of reasoning was and, more importantly, whether the insertion of the incorrect statement was merely an editorial error – perhaps an errant cut and paste – rather than something going to the root of the reasoning process.  However, unfortunately this is not possible.  Apart from very generalised statements about his disbelief of the appellant there is little in the way of forensic substance to the balance of the delegate’s reasons.   The impression that there has been carried out a mechanical process of cutting and pasting devoid of cognitive activity is not in any way dispelled by observing that at least two paragraphs of the reasons have clearly been copied from each other (cf. under the heading “Reasons” and the heading “Fear of Hindu and Muslin Extremists”).  

39                                          In those circumstances, the less than satisfactory nature of the delegate’s reasons do not permit me to be able to draw the inference one might ordinarily be able to draw that the wrong statement was not actually used in the process of reasoning.  My impression is that the reasons of the delegate bespeak a desire to dispose of the appellant’s application by the route involving the least amount of effort on the delegate’s part.  I draw that conclusion not only from the poor standard of its drafting, the inattention to significant details such as inserting the wrong statement but also from portions of the reasons which are, in the formal sense, incredible.  For example, the delegate said this:

The applicant confirmed at interview that he does not live at 3/6 Mard Street Granville, NSW, 2142, as stated at question 15 on the Form C, Application for a Protection (Class XA) Visa form.  He stated that he actually lives at 24 Gibbons Street Auburn.

The providing of such false and misleading documentation, in relation to his application for a Protection Visa, draws the applicant’s credibility and honesty into question.

40                                          I regard that as a fanciful statement signifying a desire to shirk the hard work of actually deciding applications by analysis of their merits.  I do not mean by this to suggest that the appellant’s claim is necessarily a good one; parts of his account are certainly piquant and some degree of balanced scepticism is plainly called for.  But the determination of such applications by olfactory instinct is not what the law requires.  Section 65 obliges the Minister to consider the application and this, in turn, calls on those public officials who do this difficult work, to grapple with each application and, if – as is often likely – it is to be refused to do so by proper reasons and not by the reflexive resort to the easy comforts of credit-based fact finding.

41                                          The point to be made is that delegates and the Tribunal must do the job consigned by law to them with an appropriate degree of diligence. 

42                                          In all of those circumstances, I conclude that the delegate relied upon the wrong statement in determining to refuse the appellant’s application.

Effect on the Tribunal’s Decision

43                                          The function conferred on the delegate was that set out in s 65, that is, the function of determining the appellant’s visa application.  Substantially determining someone else’s visa application does not involve a discharge of that function at all.  It follows that the delegate failed to carry out the duty imposed upon him by s 65.   The consequence is that the decision he arrived at is no decision at all, afflicted as it is by jurisdictional error.

44                                          The Tribunal’s power of review springs from s 414 of the Act and applies to “RRT – Reviewable Decisions” an expression defined in s 411(1)(c) to include “a decision to refuse to grant a protection visa”.  It has long been held that, generally speaking, a right of appeal from a decision does not require for its enlivenment a valid decision.  Thus in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 the Full Court of this Court held that the Administrative Appeals Tribunal was not limited in its review function to decisions of bureaucrats which were valid: see 41 FLR at 344 per Bowen CJ, 369 per Smithers J and 377 Deane J.  That reasoning has been applied by successive Full Courts of this Court to the Refugee Review Tribunal: SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 at 495 [25] per Black CJ and Allsop J, 517 [132] per Moore J; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 at 353-354 [29]-[31] per Finn, Mansfield and Gyles JJ; Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314 at 322 [33]-[36] per Hely, Gyles and Allsop JJ, and Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1 at 14 [51] per Wilcox and Branson JJ, 16-17 [64] per Bennett J (concurring on that point).   The consequence of these decisions is that the present decision was an RRT reviewable decision and that the Tribunal, therefore, did have jurisdiction to entertain the appellant’s review application.    

45                                          In those circumstances, despite the fact that there seems to have been a serious failure on the part of the delegate to perform his function, nevertheless, the appeal must be dismissed.  The serious consequence of what has occurred is that the appellant, who by law was entitled to two hearings on the merits, has been given only one.  That unsatisfactory state of affairs is not able to be remedied by this Court.  In all the circumstances, given the delegate was the Minister’s delegate, I propose to dismiss the appeal but to make no order as to costs.

Associate:

Dated:         24 June 2010