FEDERAL COURT OF AUSTRALIA

SZOQE v Minister for Immigration and Citizenship [2011] FCA 161

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

THE COURT DIRECTS THAT:

3.    Any reference in the transcript of proceedings to the name of the appellant be replaced by the words “the appellant”.

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    Before the Court is an appeal from a judgment of the Federal Magistrates Court given by Driver FM on 23 November 2010. The federal magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 26 August 2010. The Tribunal affirmed the decision of a delegate of the first respondent, Minister for Immigration and Citizenship, not to grant the appellants’ protection visas.

THE CLAIMS

2    The appellants are husband and wife. The claims of fear of persecution were made on behalf of the husband and the claims of the wife depend on the success of the claims of the husband. Consequently, in these reasons any reference to the appellant will be a reference to the appellant husband.

3    The appellant was born in 1978 and is a citizen of India. He arrived in Australia on 10 December 2009 and applied for a protection visa on 25 January 2010. In the statement accompanying his visa application, he claimed a fear of persecution on grounds of political opinion. The appellant said he was a member of the Congress Party and that he supported the party financially and campaigned for it in elections. He said he was targeted by the Bharatiya Janata Party (BJP). The BJP sought a donation from him which he refused. Supporters of the BJP attacked his house and dragged him to the local BJP leader on election day. He claimed the supporters of the BJP then threatened to kill him if he continued to support the Congress Party.

THE DECISION OF THE TRIBUNAL

4    The Tribunal rejected the appellant’s application for review of the delegate’s decision because it found that the appellant was not a witness of truth. The Tribunal questioned the appellant in detail about the political circumstances which would be known to a supporter of the Congress Party. The Tribunal said that there were significant inconsistencies between his evidence on these matters, including the years when two recent State elections took place, the successful candidates in those two State elections and how many years the BJP had been in power in the State of Gujarat. The Tribunal explained in the following terms at [152] that these inconsistencies were significant.

The Tribunal finds these inconsistencies significant. The applicant claimed to have provided a lot of money for the election campaign and to have been involved in campaigning and canvassing. However, he did not know when the 2 most recent State elections took place. He also claimed that the same BJP candidate won the 2 most recent State elections whereas two different persons won the State elections in 2002 and 2007. The applicant also stated at the Department’s interview that the BJP had been governing the state of Gujarat for 8 years from 2003. However the information from the Election Commission of India is that the BJP has won the State election in Gujarat in 1995, 1998, 2002 and 2007 for the seat of District X.

5    Then the Tribunal turned to other inconsistencies which it found in his evidence. For example, it referred to the inconsistency concerning the claimed attack on the appellant’s home. The Tribunal saw an inconsistency between the appellant’s written statement, which did not refer to an attack on the appellant, and his evidence at the hearing, in which he claimed a personal attack. Then the Tribunal referred to the inconsistency between the appellant’s statement, in which he referred to being kidnapped and dragged and threatened on election day, and his failure to mention this incident in his evidence at the hearing.

6    The Tribunal also found it significant that the appellant did not apply to leave India until November 2009 when most of the attacks complained about took place in early 2008. The Tribunal said that the delay in leaving India was inconsistent with the claimed fear of being persecuted. The Tribunal then rejected each of the factual claims made by the appellant. It did not accept that he was politically involved or that he had been attacked and it did not accept that he had reported any incidents of violence to the police.

7    Finally, the Tribunal placed no weight on a letter allegedly from the Indian National Congress Committee stating that the appellant was a member of the Congress Party. The Tribunal placed no weight on the letter because it had already found that the appellant was not a witness of truth, that fraudulent documents are prevalent in India, and that the letter was not provided by the appellant until after the hearing and was undated.

THE JUDGMENT OF THE FEDERAL MAGISTRATES COURT

8    The appellants filed an application for review of the Tribunal’s decision in the Federal Magistrates Court. The grounds stated were stated as follows:

1.     The applicant provided document to the Tribunal to corroborate his claims. In particular the applicant provided a letter from Indian National Congress committee. The Tribunal failed to engage in an active intellectual process in respect of the document. The Tribunal ultimately gave the document no weight o the basis of its credit findings. It was an error for the Tribunal to place no weight on the documents without engaging in an active intellectual process as to the contents of the documents.

2.    The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.

3.    The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

4.    The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequence of the claim.

5.    The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 26 August 2010 was effected by actual bias constituting judicial error.

9    The federal magistrate said that the principal argument relied upon by the appellant was contained in ground 1 which alleged that the Tribunal had failed to engage in an active intellectual process in rejecting the documents provided to the Tribunal, namely the letter the appellant claimed was from the Indian National Congress Committee.

10    The federal magistrate rejected this ground on the basis that the Tribunal had stated three reasons for its rejection of the document, namely its comprehensive findings of untruthfulness against the appellant, the prevalence of document fraud in India, and the lateness in the provision of the letter and the fact that it was undated.

11    The federal magistrate then said that the remaining grounds were in a template form, were not particularised, and did not demonstrate any jurisdictional error by the Tribunal. Consequently, the application for review was refused.

NOTICE OF APPEAL

12    On 13 December 2010, the appellant filed a notice of appeal in this Court. The grounds were as follows:

1.    The Hon. FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claims and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act. The Tribunal failed to observe this obligation amounted to a breach of a Statutory Obligation.

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.

4.    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.

13    The appellant appeared at the hearing of the appeal without legal representation but assisted by an interpreter in Gujarati. The Court asked the appellant who drafted the grounds of appeal and he replied that they were drafted by a friend of his who lives with him. He said that friend is not a migration agent.

CONISDERATION

14    The appellant was asked whether he was able to explain any of the grounds and replied that he was not. He said he does not know what they mean. He was then asked whether he had any argument about any errors made by the federal magistrate or the Tribunal and he said that he had not obtained any protection from any of the judgments. This appears to be a complaint about the rejection of his evidence by the Tribunal. The function of finding the facts is a function bestowed upon the Tribunal. It is not the function of the Court to engage in a fact finding process.

15    The appellant also explained that his wife suffered mental illness because of the stress which he was experiencing. It is not difficult to understand that the appellant and his wife’s involvement in proceedings such as this are stressful and it is unfortunate that they must undergo such suffering. However, the consequences on the appellant’s wife do not provide any grounds to question the judgment of the federal magistrate.

16    Some final reference should be made to the grounds of appeal. Having now sat on a series of cases in Court throughout the week, it is noteworthy that in a number of the appeals the notice of appeal followed precisely the same formula including the error in numbering which numbers three grounds of appeal in a sequence, 1, 2 and 4. The appellant had no idea about the meaning of the grounds. At least two of them do not raise any arguable grounds of judicial review and the first ground is unparticularised and not related to the circumstances of the particular case.

17    In a recent judgment, Flick J has comprehensively examined the difficulties confronting unrepresented appellants in this jurisdiction: SZOHY v Minister for Immigration and Citizenship [2010] FCA 1267. His Honour outlined the problems which needed to be addressed. My experience in the appeals this week confirms his Honour’s concerns. In order to ensure the integrity of the system of judicial review in this jurisdiction it is necessary now for some steps to be taken to avoid the problem of unrepresented appellants attending Court with grounds of appeal in a template form which raise no arguable basis for review in the particular case. As Flick J said, not only is this situation prone to create unwarranted disappointment in the appellants, it involves the Court in significant unnecessary litigation.

18    The first respondent has a clear interest in attending to this issue. It is to be hoped that he will take steps to investigate the reason why the phenomenon of unsustainable template notices of appeal are so regularly filed in these cases.

19    It follows from these reasons that the appeal will be dismissed.

Associate:

Dated:    1 March 2011