FEDERAL COURT OF AUSTRALIA

SZOHY v Minister for Immigration and Citizenship [2010] FCA 1267

THE COURT ORDERS THAT:

1.                  The Notice of Appeal as filed on 1 July 2010 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 Malaysia. He is married to an Indian woman with whom he has had two children.

2                                             He arrived most recently in Australia on 9 July 2009 and applied to the Department of Immigration and Citizenship on 17 August 2009 for a Protection (Class XA) visa. A delegate refused to grant that visa on 11 November 2009. On 7 December 2009 he applied to the Refugee Review Tribunal seeking review.

3                                             The Tribunal affirmed the decision not to grant the visa and notified the now Appellant of its decision and its reasons on 11 March 2010. The claim to refugee status both to the delegate and to the Tribunal centred upon an assertion that the now Appellant was a member of what was described as the People’s Justice Party (the “PKR”) and an assertion that “[m]embers of the opposition party did not like me working in the elections”.

4                                             An application for review was apparently filed with the Federal Magistrates Court of Australia on 7 April 2010 and an Amended Application was thereafter filed on 17 May 2010. A hearing was held before that Court on 10 June 2010 but was adjourned to the following day by reason of a difficulty being experienced by the now Appellant with the interpreter provided. On 11 June 2010 the hearing resumed and the Court proceeded to deliver ex tempore reasons for dismissing the application before it: SZOHY v Minister for Immigration and Citizenship [2010] FMCA 477.

5                                             A Notice of Appeal was filed in this Court on 1 July 2010.

6                                             The Appellant appeared before this Court on 5 November 2010 unrepresented. He was accompanied by an interpreter.

7                                             The appeal is to be dismissed – but the difficulties encountered in the present proceeding (and other proceedings) need to be briefly mentioned.

Difficulties Confronting the Unrepresented — Problems Needing To Be Addressed

8                                             There is frequently within this area of the law a departure between the grounds of review relied upon before the Federal Magistrates Court and the grounds later relied upon as grounds of appeal before this Court.

9                                             Cases inevitably thus arise where consideration has to be given to whether an unrepresented appellant should be permitted to depart from the manner in which his case has been previously advanced for judicial determination.

10                                          Without any attempt to be exhaustive, when such a departure does arise the difficulties to be confronted include the following:

·                    the very fact that the appellant before the Court is unrepresented and the practical and legal difficulties confronting those who claim refugee status. Some claimants, it must be recognised, are “engaged in an often desperate battle for freedom, if not life itself” (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 577 to 578 per Gummow and Hayne JJ) (“Abebe”);

·                    the general principle that a party, including an unrepresented party, is normally bound at the appeal stage by the manner in which a case is advanced for resolution at first instance (cf. University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483);

·                    the public interest in cases, particularly in this area of the law, being resolved in a timely manner (Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62], 192 ALR 71 at 86);

·                    the fact that the Legislature has identified the Federal Magistrates Court as the primary court in which cases in this area are to be resolved and the potential for that legislative objective to be frustrated or undermined if the role of the Federal Court as an intermediate court of appeal was transformed into a de facto court of first instance (SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [30]);

·                    the potential for the Court to either so assist the unrepresented party that the other side is disadvantaged or – and a consideration of equal importance – that the Court may be seen to so assist the unrepresented party that the other represented party may see itself as being at a disadvantage (Vaeula v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 147 at [59]);

·                    the potential for tension (if not conflict) in the role to be discharged by the legal representatives for the respondent Minister, a role somewhat curiously called the “model litigant” – the tension being between assisting the Court and representing the litigious interests of the Minister; and

·                    the fact that an appellate court is denied the benefit of reasons for decision in respect to the new argument sought to be advanced for the first time on appeal.  

11                                          The difficulties confronting unrepresented appellants in this area of the law are only compounded by the fact that:

·                    the grounds of review advanced before the Federal Magistrates Court and the grounds of appeal advanced before this Court, it is strongly suspected, are in many cases drafted by persons who have little or no understanding of the law; little or no understanding of even the individual case itself; and are drafted by persons who are in a position to exploit those whom they profess to “assist”. It may well be doubted whether those who provide “assistance” have any real understanding of “jurisdictional error” (cf. Refugee Review Tribunal, Re; Ex parte HB [2001] HCA 34 at [13] and [24], 179 ALR 513 at 516 and 518 to 519 per Kirby J). And it is less open to doubt that the unrepresented appellants – who invariably insist that they or their “friends” drafted the grounds to be relied upon – have even less understanding. Whether the unrepresented appellant is at least provided with some emotional support or whether they are merely given “false hope” or whether they merely wish to prolong their stay in Australia by an unmeritorious appeal should not be left to mere judicial musings. The involvement of others who are seriously deficient in their competence to provide any real assistance (and their apparent disinterest in providing any real assistance) most clearly emerges in those cases where the Court is confronted in different proceedings with the same or substantially the same grounds as have emerged previously in quite unrelated cases: e.g., SZOBU v Minister for Immigration and Citizenship [2010] FCA 568 at [29] to [31]. To request an unrepresented appellant to explain the grounds of appeal – or even to explain why a new argument was not previously raised at first instance – is invariably an exercise in futility.

Whatever the difficulties, the duty imposed upon the Judge or Judges hearing the appeal remains the duty imposed by the oath of office to “do right to all manner of people according to law without fear or favour, affection or illwill”: Federal Court of Australia Act 1976 (Cth), s 11. The legislative prescription set forth in s 37M(1) that the “overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes” in a manner “according to law” and “as quickly, inexpensively and efficiently as possible” is difficult to discharge where the difficulties themselves remain unaddressed.

12                                          These very real difficulties are repeatedly confronted in cases such as the present. They are difficulties that have been repeatedly referred to in many decisions of this Court: e.g., SZJOG v Minister for Immigration and Citizenship [2010] FCA 244 at [15], Vaeula at [58] to [62].

13                                          The time, perhaps, has well and truly come when the difficulties need to be addressed. They will not simply go away. Whilst some difficulties are common to many unrepresented litigants in many areas of the law, some difficulties are peculiar to cases arising under the Migration Act 1958 (Cth). The impact upon this Court in the resolution of appeals which arguably should never have been commenced is but one matter to be considered; a quite different consideration is the continuing potential for those seeking review of adverse decisions in respect to claims to refugee status to be exploited.  

14                                          Although those who do receive legal aid are obviously appreciative of the assistance provided, it is not at all clear that the difficulties being encountered can adequately be resolved by the mere provision of further legal aid.

A Change in the Grounds Relied Upon

15                                          The present appeal is yet a further instance of a departure or an apparent departure between the manner in which the now Appellant sought to advance his case before the Federal Magistrate and the manner in which he now does so before this Court.

16                                          The ground set forth in the Amended Application as filed with the Federal Magistrates Court in May 2010 identified the ground then relied upon (without alteration) as follows:

The Tribunal constructively failed to exercise its jurisdiction.

Particulars:

The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process in respect of his documents. The Tribunal ultimately gave the documents no weight on the basis of its credit findings. It was error for the Tribunal to place no weight on the documents without engaging in an active intellectual process as to the contents of the document. It was an error for the Tribunal to assess the Applicant’s credit without first assessing whether the substance of the documents corroborated his claims.

Albeit capable of being expressed in a variety of ways, this was essentially a challenge to the decision of the Tribunal upon the bases that it had erred by not giving “weight” to documents and had further erred by reaching its conclusion as to credit without first “assessing whether the substance of the documents corroborated his claims”. It could also be construed as a contention that there had been a failure to genuinely consider relevant material.

17                                          The Federal Magistrate rejected the application. In doing so, he said:

[53] … In the current case the Tribunal dealt with each document in an appropriate and where necessary meaningful way. That is, it engaged in an “active intellectual process” in relation to each document, to the extent that was required and in light of the relevance of each document to those aspects of the applicant’s claims to which the documents were said to individually relate. There was no failure of any intellectual activity in this case, in the sense as referred to in such cases as Tickner v Chapman (1995) 57 FCR 451 and Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140.

The Federal Magistrate later continued on to observe:

[56] … The Full Federal Court [in Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51] found that the corroborative evidence should be assessed and weighed in the balance with all the other evidence put before the Tribunal. This is exactly what the Tribunal did in the current case. It did so in the way that I have already explained above. On this basis also, therefore, the Tribunal did not fall into jurisdictional error.

Each of the “documents” provided by the now Appellant had been addressed and considered by the Tribunal. No error is discernible in the decision of the Federal Magistrate resolving the grounds then advanced before him.

18                                          The Grounds of Appeal as set forth in the Notice of Appeal now before this Courtprovide (without alteration) as follows:

1.      The Hon. Federal Magistrate Nicholls did not consider the lack of procedural fairness in the proceeding of Refugee Review Tribunal that the Tribunal failed to investigate applicant’s genuine claims with the requirement of Migration Act 1958.

2.      The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.

3.      The Hon. FM failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.

Differences in the manner in which arguments are expressed or in the manner in which they are sought to be advanced may be left to one side. Whether Grounds 2 and/or 3 are (perhaps) but different ways of expressing the same argument as that resolved by the Federal Magistrate may be open to question. But Ground 1 seems to be a new argument not previously raised.

19                                          None of the Grounds, however, have any merit.

A Failure To Investigate?

20                                          The first Ground of Appeal alleging a “lack of procedural fairness” by reason of the Tribunal’s failure “to investigate applicant’s genuine claims” is an argument not advanced before the Federal Magistrate.  

21                                          A new argument may be raised on appeal in migration cases, as with other cases, where it is “expedient in the interests of justice to do so”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] per Kiefel, Weinberg and Stone JJ. Relevant to the exercise of the discretion to grant or refuse leave to raise a new argument are, amongst other factors, the prospects of success of the new argument and whether an explanation has been provided for not previously raising the argument: MZXEN v Minister for Immigration and Citizenship [2007] FCA 829, 240 ALR 582.

22                                          In the present proceeding it is considered that leave to raise Ground 1 should be refused – it is a ground without merit and no explanation has been provided for the failure to raise the argument before the Federal Magistrate. It cannot be said to be “expedient in the interests of justice” to raise an argument which has no prospects of success.

23                                          In reaching this conclusion it is recognised that it is the responsibility of a claimant to advance such evidence and submissions as are considered support the claim advanced and that the Tribunal, in resolving the claims advanced, performs an inquisitorial function.

24                                          The primary responsibility of a claimant to present such evidence and to advance such submissions as are considered relevant to the claims being made has long been recognised and was referred to by Gummow and Hayne JJ in Abebe at 576 where it was said that it was:

… for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

“[I]t is for the applicant for a protection visa to establish the claims that are made”: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40], 228 CLR 152 at 164. See also: SZJZS v Minister for Immigration and Citizenship [2008] FCA 789 at [15] to [16], 102 ALD 318 at 321 to 322; SZLPN v Minister for Immigration and Citizenship [2010] FCA 202 at [13] to [14].

25                                          The inquisitorial function of the Tribunal has also long been recognised and was expressed in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, 259 ALR 429 (“SZIAI”) by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ as follows:

[18] It has been said in this Court on more than one occasion that proceedings before the Tribunal are inquisitorial, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word “inquisitorial” has been used to indicate that the tribunal, which can exercise all the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the tribunal as a contradictor. The relevant ordinary meaning of “inquisitorial” is “having or exercising the function of an inquisitor”, that is to say “one whose official duty it is to inquire, examine or investigate”. As applied to the tribunal “inquisitorial” does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal’s functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to “review the decision” which is the subject of a valid application made to the tribunal under s 412 of the Act. [footnotes omitted]

See also: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [57], 164 FCR 14 at 28 to 29 per Allsop J.

26                                          The absence of any further general “duty to inquire” was addressed in SZIAI as follows:

[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by theMigration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. … [footnotes omitted]

27                                          In the present proceeding there was no further “obvious inquiry about a critical fact” that could be identified.

28                                          During the course of the hearing on 5 November 2010, the Appellant (via his interpreter) explained that the denial of “procedural fairness” to which he referred was a failure to consider – or perhaps further inquire into – his claims (inter alia) that his property had been damaged and his claims to have been hospitalised as a result of attacks upon him. There is, however, no substance to such an argument. He has had an opportunity to advance his claims before the Tribunal and to advance the evidence he sought to rely upon. Those claims and the evidence have been considered and resolved by the Tribunal. There has been no denial of any “procedural fairness” either by reason of any failure to afford him an opportunity to advance his claims or by reason of any failure to investigate those claims further. Nor is there any other denial of “procedural fairness” otherwise discernible.

29                                          Leave to raise Ground 1 is refused.

Legal and Factual Errors?

30                                          Difficulty is also expressed in respect to the second Ground of Appeal.

31                                          The “legal and factual errors” referred to in the Notice of Appeal are not further identified. The only specification is that the “legal and factual errors” are said to be contained in the reasons for decision of the Tribunal. And which of any such “errors” are said to have not been considered by the Federal Magistrate is also left unexpressed.

32                                          The Ground of Appeal, however, is perhaps best understood as a repetition of the argument advanced before – but rejected by – the Federal Magistrate.

33                                          So construed, the Ground is without substance for the reasons advanced by the Federal Magistrate.

34                                          If the “error” to which reference is made is an alleged error in failing to consider the “documents” provided to the Tribunal, those documents were in fact taken into account by the Tribunal. That was the conclusion of the Federal Magistrate and a reading of the Tribunal’s reasons for decision provides no basis for concluding that the Tribunal failed to properly consider the claims being advanced and the materials provided by the now Appellant.

35                                          If the “error” sought to be advanced in Ground 2 is an alleged error in respect to the “weight” given to those “documents” by the Tribunal, that argument is also rejected. The “weight” to be given to the documents, together with any other evidence a claimant may wish to rely upon, is a matter for the Tribunal alone. It is the decision-maker entrusted by the Legislature with the task of making findings of fact.

36                                          The findings of fact made by the Tribunal in the present proceeding were findings open to it to be made on the materials available. It was the task of the Tribunal, and not this Court, to make those findings: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 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). Jurisdictional error does not “comprehend errors of fact as to the merits of the case” advanced before the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] per Gray, Tamberlin and Lander JJ.

37                                          No jurisdictional error is exposed simply by reason of a claimant contending that it was open to the Tribunal to have reached a different conclusion. Except in confined instances, it is simply no part of the function of either the Federal Magistrates Court or this Court on appeal to consider the factual merits of the decision of the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281 to 282.

38                                          Moreover, the ultimate conclusion of the Tribunal is founded upon an adverse assessment as to the now Appellant’s credit. It was at paragraph [82] of its reasons for decision that the Tribunal set forth six aspects of the evidence it relied upon “to conclude that the applicant is not truthful or credible in relation to his persecution claims”. One or other of those matters may perhaps not have been a sufficient basis upon which to reach such an adverse conclusion; others may not have attributed the same weight to any one or other of these matters and may have concluded that less or more weight should be given to them either individually or collectively. But the task of weighing the evidence was a matter for the Tribunal.  

39                                          Findings as to credibility, it has repeatedly been said, are findings of fact par excellence, entrusted to the Tribunal alone to make: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], 168 ALR 407 at 423; SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [34], 181 FCR 113 at 124; SZLPN v Minister for Immigration and Citizenship [2010] FCA 202 at [18].

40                                          In the present case no relevant error is discernible in the findings of fact which the Tribunal made and no error is discernible in the reasons of the Federal Magistrate.

41                                          Ground 2 of the Notice of Appeal is rejected.

An Unjust Decision?

42                                          Difficulties also arise in respect to the final Ground of Appeal.

43                                          It is unclear whether the argument sought to be advanced is but a different way of advancing the argument which has already been rejected by the Federal Magistrate. It is also unclear whether this final Ground of Appeal is again a further impermissible attempt to review the merits of the Tribunal’s decision on the general basis that it is “unjust” or whether it is an attempt to identify a relevant consideration which has not been taken into account.

44                                          However the Ground be construed, it is without merit.

45                                          The claims being advanced by the now Appellant were in fact taken into account as was the “gravity” of the now Appellant’s circumstances. After having recounted the evidence given during the course of the hearing, the Tribunal, at that part of its decision where it was addressing “findings and reasons”, expressly referred to the “difficulties often faced by asylum seekers” and to the observations of Gummow and Hayne JJ in Abebe where their Honours referred to the “often desperate battle for freedom, if not for life”.

46                                          Such observations deny any basis for concluding that the Tribunal was not conscious of the “gravity” of its decision and the “consequences” of its decision upon the now Appellant.

47                                          Nor is there any substance to the Ground as it was advanced by the Appellant at the hearing on 5 November 2010. On that occasion the Appellant explained that his concern was that he wanted “one more chance” and that he “wanted a good life”. But such concerns are not for this Court to resolve. The factual merits of the claims an applicant wishes to advance are to be advanced to the Tribunal – and not this Court.

Conclusions 

48                                          The Notice of Appeal is to be dismissed. Leave to raise Ground 1 is refused and would have been dismissed as being without merit even had leave been granted. Notwithstanding some reservation as to whether the remaining Grounds are but a different way of expressing the arguments that were advanced before the Federal Magistrate, or are themselves new Grounds which would also require leave to be advanced, they are also in any event without merit and should be dismissed.

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

ORDERS

50                                          The Orders of the Court are:

1.                  The Notice of Appeal as filed on 1 July 2010 is dismissed.

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

Associate:

Dated:         19 November 2010