FEDERAL COURT OF AUSTRALIA

SZOYA v Minister for Immigration & Citizenship [2011] FCA 965

THE COURT ORDERS THAT:

1.    Leave to appeal be refused.

2.    The first applicant pay the first respondent’s costs in the sum of $2,271.

Note:    Entry of orders is dealt with in Order 39.32 of the Federal Court Rules 2011. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1        The first applicant claims to fear persecution in India because of his political opinions.

2        On 8 July 2010 he applied for a protection (class XA) visa for himself, the second applicant (his wife) and the third applicant (his infant daughter), who, despite being born in Australia, does not have Australian citizenship (Australian Citizenship Act 2007 (Cth) s 12(1)). The applicants are Indian nationals from the Gujarat state.

3        In his application the first applicant stated that he was targeted and assaulted during high school by student groups of the BJP (the Bharatiya Janata Party) and unnamed extremist groups. The reason he gave was that, when he was a student and an active member of the student wing of the (Indian National) Congress party, he was outspoken in his support for the rights of lower class Hindus and Muslims. On one occasion, he stated that he was with his wife when he was attacked on his way back from a party. He claimed he was injured in the attack and his wife fell to the ground. He said he recognised some of the culprits and reported the attack to the police, but they failed to do anything. Even after he reported the matter to “the higher authorities”, he added, nothing was done and two weeks later he was attacked again by the same groups. He claimed that the “network” was very strong and was “all over India”. He considered his life was under threat and he would be unable to get protection anywhere in the country. The claims of his wife and child depended on the success of his own (see Migration Act 1958 (Cth), s 36(2)(b)).

4        Neither the first applicant nor his wife attended an interview with a delegate of the first respondent (“the Minister”) when invited to do so and the application was consequently unsuccessful. They applied for review to the second respondent (“the tribunal”), but failed to attend the hearing. The tribunal went on to decide their applications in their absence and affirm the Minister’s decision. The applicants then applied to the Federal Magistrates Court for judicial review but their application was dismissed pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth), which entitles the Court to dismiss an application of that nature where there is no arguable case for the relief claimed. This is an application for leave to appeal from that decision. For the reasons that follow the application must be refused.

The tribunal proceeding

5        On 9 November 2010 a tribunal officer wrote to the applicants, acknowledging receipt of their applications for review and inviting them, if they wished to, to submit “material or written arguments for the tribunal to consider”.

6        On 19 November 2010 a tribunal officer wrote again to the applicants, this time indicating that it had considered the material before it but was unable to make a favourable decision on that information alone. It invited them to appear before the tribunal, give evidence and present arguments.

7        The applicants did not accept either invitation.

8        In her decision, the tribunal member noted the first applicant’s claims, accepted that he was a citizen of India, but said she could not be satisfied on the limited material before her that he was eligible for a protection visa. She also noted that his statement lacked sufficient relevant detail to determine whether he fell within the definition of “refugee” in the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees and therefore did not accept the claims the first applicant made concerning his political activities, the conduct of others towards him or that he had a well-founded fear of persecution for a Convention-related reason. Accordingly, she affirmed the decision under review.

The proceeding before the federal magistrate

9        The applicants applied to the Federal Magistrates Court for an order that the respondents show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s 476 of the Migration Act.

10        In the Federal Magistrates Court the applicants sought the following final orders (without alteration):

(1)    Respondent decision being void be set asided

(2)    The application for Judicial Intervention may kindly be allowed

(3)    Applicant may kindly be allowed the cost

11        The grounds of the show cause application were as follows (without alteration except where indicated):

(1)    The statement of decision of the respondent No 2 is merely a reiteration [scil.] of the claim. There has been no decision in accordance with migration act

(2)    Decision [scil.] suffers from legal ambiguity

(3)    There has been gross irregularities occured in legal framework

12        The first applicant also filed an affidavit in support in which he stated (again unaltered except where indicated):

(1)    That the respondents have committed the gross violation of law. The [tribunal] in their decision says that the case of the applicant admitted to all the aspect, but the decision was made otherwise [scil.], the respondent delegate [scil.] and the [tribunal] committed gross violation of the law and committed the jurisdictional error.

(2)    The claim of the applicant was not dealt in accordance with the laws of the natural justice this is an error [scil.] of law. …

13         He asked that the application be sent back to the tribunal.

14        The first applicant later filed another document entitled “amended application” but it was, in fact, a written submission. As the federal magistrate observed in his reasons, the submission was no more than an account of his claim to fear harm in India.

15        It is plain that the first applicant misconceived the nature of the federal magistrate’s jurisdiction. The effect of s 476 of the Migration Act is to preclude any reconsideration of the merits of the tribunal’s decision; the federal magistrate may only set aside a decision of the tribunal if it is affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

16        On 15 April 2011, in an ex tempore decision, the federal magistrate dismissed the application. As I mentioned earlier, his Honour did so pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules, which provides:

(1)    At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed -- dismiss the application.

17        His Honour found the tribunal had committed no jurisdictional error. He noted in detail the procedures followed by the tribunal, comparing them with the procedures set out in the Migration Act and concluded that they had been followed. He observed that the tribunal has a discretion to determine a review in the absence of the applicant when an applicant who is invited to appear before it fails to do so (Migration Act, s 426A). He noted the breadth of that discretion. He also considered the possibility that the tribunal’s decision may have been vitiated by fraud (cf. SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (“SZFDE”)) as the first applicant had said that he had received gratuitous advice from a friend that it would be unwise to attend an oral hearing. But his Honour concluded that the first applicant made his own decision not to attend and this was simply a case of poor judgment on his part.

The appeal

18        On 5 May 2011 the first applicant (apparently on behalf of all applicants) applied to this Court for leave to appeal the federal magistrate’s decision. Leave is required because a decision to dismiss under r 44.12(1)(a) is interlocutory (Federal Magistrates Court Rules, r 44.12(2)) and an appeal shall not be brought from an interlocutory judgment unless the Court or judge grants leave (Federal Court of Australia Act 1976 (Cth), s 24(1A)).

19        Order  52 r 5(2) of the Federal Court Rules 1979 (Cth) (repealed, effective 1 August 2011) (“the former Rules”) required that an application for leave to appeal had to be filed within 21 days after the judgment was pronounced or a later date fixed for that purpose by the Court. Order 52 r 5(3) provided that, where an application was not filed within that time, an order had to be sought in the application that compliance with subrule (2) be dispensed with. In his application the first applicant sought such an order. In that regard he was mistaken. No such order was necessary. The application was filed just within the prescribed time.

20        In his application the first applicant also expressed a wish that the application be dealt with without an oral hearing. The Minister consented to this course and I therefore dispensed with an oral hearing.

21        The grounds of appeal are in the following terms (without alteration):

(1)    That the Learned Federal Magistrate has failed to determine the actual harm to which the appellant is faced with, the appellant belongs to the Indian national Congress Party, in the province of Gujarat, India. The applicant is open to the serious harm as the appellant submitted in his statement of claim[.] The appellant was involved in the political party which does not matched the ideology of the present party, the appellant was subjected to serious harm, the applicant has undergone lot of persecution[.] This is a jurisdictional error, and a mistake of law.

(2)    That the Appellants submitted the whole evidence of his being involved in the political activities, the applicant submitted the bundles of the evidence before the department, and RRT, but the evidence was not taken in to consideration which has resulted in the miscarriage of justice. The applicant has an arguable case, to which the applicant shall submit more evidence. The applicants evidence was ignored, if it was not ignored, the applicant, if the evidence is read, the applicant has an arguable case. The appellant made out a case which really requires the judicial inference of this honorable Court as to determine the danger of life being taken away.

(3)    That the Respondents did not applied the proper law and procedure, this has resulted in the error of the law. The Learned FM only repatriated the decisions made by the Respondents, but failed to give their own verdict in accordance with the Federal Magistrate Court Rules.

22        The application was supported by an affidavit sworn by the first applicant. In it the first applicant complains that the federal magistrate

only passed an order without going in to the evidence of the applicant, and made his statement of decision under special leave to appeal. This is against the rules of the Federal Magistrate Court, the Learned FMC only repatriated the orders and statement of decision made by the Respondent, and specially the [tribunal].

23        He then proceeds to recapitulate his claims concerning his fear of harm in India.

24        No submissions were made in support of the application.

25        The application should be refused. The federal magistrate was entitled, indeed obliged, to dismiss the application. On any view it was bound to fail.

26        In the first place, it was not for the federal magistrate to determine whether or not the first applicant could suffer harm in India. As I indicated earlier, he had no jurisdiction to do so. That question was for the tribunal alone.

27        The reference to “bundles of evidence” in the draft notice of grounds of appeal is obscure. The Court Book presented to the federal magistrate contained only one item of evidence relating to the first applicant’s claims and that was the statement he made in his application for a protection visa.

28        Secondly the first applicant may have had an arguable case before the tribunal but that is beside the point. The point is whether he had an arguable case before the federal magistrate. Without doubt he did not. That is because he was unable to show that the tribunal’s decision was affected by jurisdictional error. His Honour referred to the remarks of the Full Court in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5]. There, the Full Court noted that, in assessing the adequacy of the tribunal’s reasons, it was necessary to bear in mind the fact that the tribunal had told the applicant that it was unable to find in his favour on the basis of the material it had been given and had invited him to provide additional information. The Full Court then referred to the applicant’s outline of his case for protection, describing it as “short and vague”, and to make the commonsense observation that the tribunal is not obliged to accept everything an applicant says at face value. It went on to say:

Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.

29        The applicants in this case were given the same warning and afforded the same opportunity. Here, as there, the outcome was inevitable.

30        Thirdly, while a denial of natural justice does amount to jurisdictional error, there was no denial here. Section 422B of the Migration Act provides that Division 4 of Part 7 of the Migration Act is taken to be an exhaustive statement of the natural justice hearing rule. At [21]-[34] of his reasons the federal magistrate explained why there had been no violation of that rule. His Honour was entirely correct. On the material before him there was no breach of the relevant provisions of Division 4 of Part 7.

31        For completeness I should say that the federal magistrate’s decision on the question of fraud, though not apparently challenged, was also correct. There was simply no evidence before him to support such a finding. If the account the first applicant gave the tribunal was true (and I have no reason to think otherwise), he was, as his Honour said, poorly advised. The tribunal was not, however, “disabled” on that account “from the due discharge of its imperative statutory functions” (SZFDE at [51]). The process the tribunal followed was the natural consequence of the first applicant’s conscious election not to accept the tribunal’s invitation. Cf. Minister for Immigration and Citizenship v Lu (2010) 189 FCR 525 at [38].

32        Leave to appeal will generally only be granted where, amongst other things, there is sufficient doubt about the correctness of the decision below: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. There is no reason here to depart from the general rule, and I am in no such doubt. Indeed, I am well satisfied that the decision of the federal magistrate was right.

Conclusion

33        The appeal has no reasonable prospects of success. I therefore dismiss the application. The first applicant should pay the Minister’s costs.

34        The Minister sought an order for a gross sum, instead of taxed costs, pursuant to O 62 r 4(2)(c) of the former Rules. The application was supported by an affidavit affirmed by Mr Adam Wood, a solicitor in the employ of Ziad Chami, the solicitor for the Minister, and the person with the daily carriage of the matter under Mr Chami’s supervision. The sum sought is $2,271, which, according to the affidavit, represents 65% of the professional costs actually incurred and the amount likely to be achieved on taxation. The power to make an order under O 62 r 4(2)(c) is unconstrained by the nature of the proceedings and is expressed in general terms. The affidavit itemises the particular work done and to be done although it does not refer to the costs of each individual item. The undiscounted sum of $3,494 for a matter of this nature does not strike me as excessive. In the circumstances I am prepared to accede to the request. There will therefore be an order that the first applicant pay the Minister $2,271 for his costs.

Associate:

Dated:    24 August 2011