FEDERAL COURT OF AUSTRALIA

SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244

THE COURT ORDERS THAT:

1.    The Notice of Appeal as filed on 11 August 2011 is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or as taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        The Appellant is a citizen of India.

2        He arrived in Australia on 20 November 2007 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 18 May 2010. A delegate of the Minister refused that application on 19 November 2010 and on 3 December 2010 the Appellant applied to the Refugee Review Tribunal for review of the delegate’s decision.

3        On 13 April 2011 the Tribunal affirmed the decision not to grant the visa. On 13 May 2011 an application was filed with the Federal Magistrates Court of Australia. That Court on 21 July 2011 dismissed the application with costs: SZQFS v Minister for Immigration and Citizenship [2011] FMCA 569.

4        A Notice of Appeal was filed in this Court on 11 August 2011.

5        The Appellant appeared before this Court on 31 October 2011. He was unrepresented.

6        The appeal is to be dismissed.

THE GROUNDS OF APPEAL

7        The Grounds of Appeal as set forth in the Notice of Appeal, as with many grounds raised in cases arising under the Migration Act 1958 (Cth), failed to identify with any precision the appellable error said to have been committed by the Federal Magistrate.

8        The potential difficulties confronting those who seek refugee status cannot, however, be underestimated. Formal deficiencies in the expression of grounds of appeal should not be seized upon as a means of rejecting claims for review which, if reformulated, may expose some arguable point. However the responsibility may be expressed, attempts should be made to understand the arguments sought to be advanced for resolution.

9        The present Grounds of Appeal should be considered both by reference to the arguments sought to be advanced before the Federal Magistrate and by the terms in which they are now expressed.

10        The application as filed in the Federal Magistrates Court stated the grounds there relied upon as follows:

1.    My case was not heard according to law. There is a jurisdictional and legal error, as I supplied all the information as requested.

2.    I attended the RRT interview, and provided all the evidence as requested before the RRT. But my case was refused again.

3.    By appearing before the RRT, I submitted and produced all the evidence and supporting documents. I provided my statement of claim and spent nearly three hours. Yet my evidence was not considered, as per law. Therefore RRT decision suffers from prejudice and legal error.

The Grounds of Appeal as stated in this Court were more extensive – but, regrettably, not more informative. They stated (without alteration) as follows:

1.    That the Learned Federal Magistrate has failed to determine the question of law that the RRT failed to give the satisfactory decision points raised by the applicant the question of law were ignored as such there is a jurisdictional error. The applicant has challenged the statement of decision wherein the learned FM failed to answer the applicants assertions on the decision. The applicant is not represented by a lawyer, the applicant by way of claim submitted his claim before the respondents. The applicant had to undergo lot of persecution and the discriminations by the hands of the upper class of Hindus. The applicants father was based with the result that he has become paralyzed. There occurs a legal and jurisdictional error committed by the respondent.

2.    That the applicant/appellant submits that there are number of atrocities committed upon the applicants class, the applicant is a member of the Sheve Sana Party, which is a part and parcel of the BJP, the applicant was also affiliated with the Bharaitya JANATA PARTY WHOSE NAME HAS BEEN GIVEN ABOVE. Both these parties are the majority of the Hindu population. The Khalistan movement Party which has got its student members through out India. The applicant was a very active member of the above party which reprehensive about seventy percent of the Population. The Khalistan student Federation, and their allied groups are after the killings and the targeting the known party activists, while the applicant was there in India, the applicant had a very severe clashes with the KSF. It isto be mentioned that the KSF is a terrorists Party, which has also been banned, but in India they are attacking daily the public places like railway stations and many other public places. These groups have attacked the Religious Hindus Temples. The applicant stood up against them and was persecuted by this group. The applicant was chased and was threatened to death, further the applicant was bashed many a times and was in a sense was made to go out of the Punjab. The applicant than in the other states started to speak against them, the applicant was again open to risk, the applicant was physically bashed and was treated in an inhuman manner. The applicant was unable to get the protection from the Indian authorities. The applicant while appearing before the RRT submitted all the happenings and also gave his evidence in support of his claim. The applicants case was not addressed in accordance with the law, as such there is an judicial and legal error, moreover, the RRT has also committed the legal and jurdictional errors in the case.

3.    That the Respondents have failed to address the claim as submitted by the applicant and also the RRT also failed to give an judgment/decision on the issue raised by the applicant. This has resulted in the error of the law.

11        Although every effort should be made to fully understand the case sought to be advanced by a claimant, some reservation may be expressed as to any willingness to do so in the present proceeding. That reservation arises out of the fact that the deficiencies in the grounds relied upon before the Federal Magistrate were expressly drawn to the now Appellant’s attention. Leave was given to the now Appellant to file an amended application and access to the Legal Advice Scheme of the Federal Magistrates Court was availed of. No amended application was in fact filed: [2011] FMCA 569 at [27] to [29].

12        The jurisdiction of this Court presently being exercised, it should be recalled, remains an appellate jurisdiction “to correct error made at first instance”: cf. Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd [2005] FCAFC 131 at [45], 220 ALR 211 at 220 per Branson, Nicholson and Jacobson JJ. See also: SZMSF v Minister for Immigration and Citizenship [2010] FCA 585 at [24]. It is not at all clear whether the Grounds of Appeal as presently drafted are but an attempt to reformulate the grounds previously relied upon before the Federal Magistrate so as to better present the same arguments or an attempt to raise new and different arguments. As presently expressed, it may be that the present Grounds of Appeal are narrower than the grounds previously relied upon. There remain, however, common features to the arguments being advanced. But no course should be encouraged whereby a party is given every opportunity to properly formulate his claims at first instance and to thereafter attempt to reformulate those claims on appeal to raise different arguments with a view to presumably securing greater success.

13        In the present proceeding it is only the first Ground of Appeal which expressly addresses the decision of the Federal Magistrate; the remaining two Grounds seem to be an impermissible attempt to re-agitate the merits of the factual dispute entrusted to the Tribunal for resolution.

14        Given such difficulties, the claims as advanced before the delegate and the Tribunal have been nevertheless reviewed – as has, more importantly, the decision of the Federal Magistrate.

15        So approached, no jurisdictional or appellable error is discernible.

THE RESOLUTION OF THE CLAIMS BY THE TRIBUNAL

16        The genesis of the Appellant’s difficulties lies in the dearth of materials he initially relied upon when advancing his claims before the delegate and in the inconsistencies in the account he later gave when he attended a hearing before the Tribunal.

17        It is incumbent upon a claimant seeking refugee status to present for consideration all materials sought to be relied upon. Thus, in Kioa v West [1985] HCA 81, 159 CLR 550 at 587, Mason J (as his Honour then was) said:

The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward.

And, when addressing proceedings before the Refugee Review Tribunal in Abebe v Commonwealth of Australia [1999] HCA 14, 197 CLR 510 at 576, Gummow and Hayne JJ have similarly stated:

[187] … The proceedings before the Tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is 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.

See also: Minister for Immigration and Multicultural Affairs v Cho [1999] FCA 946 at [39], 92 FCR 315 at 324 per Tamberlin and Katz JJ. Subsequently, in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, 197 ALR 389 at 405, Kirby J again stated:

[78] … The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances …

The proposition is consistently repeated. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, 228 CLR 152 at 164, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ thus said:

[40] … it is for the applicant for a protection visa to establish the claims that are made …

See also: Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123 at [45], 113 ALD 46 at 55 per Spender, Moore and Foster JJ; SZOOM v Minister for Immigration and Citizenship [2011] FCA 152 at [16] to [19]. It is not a course open to a claimant to advance such materials as he has available and to thereafter leave it to the delegate or the Tribunal to make its own further inquiries and to formulate a claim on behalf of the claimant.

18        The claim as made to the Department, in the present proceeding, was supported by a completed application form and relevantly annexed a copy of the Appellant’s passport and a two page statement titled “Statement of Claim”. No documents were provided in support of any of the allegations made in the statement. The now Appellant was invited by letter dated 7 October 2010 to attend an interview before the delegate but he did not avail himself of that opportunity.

19        A “Visa Application Summary” prepared by the delegate sets forth a summary of the claims made, refers to the delay in applying for the protection visa and other applications for other forms of visa and states that “[c]urrent country reports for India show that there is nothing to suggest that the applicant would be refused protection or that protection would be withheld for any Convention reason”. It concludes in part as follows:

Finding

I have carefully considered the applicant’s claims both individually and cumulatively. I am not satisfied that the applicant has a profile of interest in India, to the Khalistan Student Federation or other groups or persons for his political opinion or his religion, or that he would suffer serious harm in India for any other Convention reason.

I find that he does not have a genuine fear of serious harm for a Convention reason and that there is not a real chance of persecution occurring. I therefore find that the applicant’s fear of persecution, as defined under the Refugees Convention, is not well founded.

Given the scarcity of the information provided by the now Appellant, that conclusion of the delegate seemed – with respect – almost inevitable.

20        Thereafter, the now Appellant was invited to attend a hearing before the Tribunal on 17 March 2011. He accepted that invitation. The hearing occupied approximately 2 hours. The only document he took to the hearing before the Tribunal was his passport. His account provided during the course of that hearing, however, exposed the second of the difficulties which the Appellant was thereafter unable to overcome – his account exposed inconsistencies and led to adverse findings as to credit.

21        The reasons for decision of the Tribunal record a detailed account of the issues canvassed during the course of the hearing. It did not find the account provided by the now Appellant as “credible”. Thus, for instance, after setting forth his account of the treatment he received at the hands of the Khalistan Student Federation and his prior failure to provide such details, the Tribunal concluded:

[116] … He also said that he had not remembered then at the time the PVA was being prepared. He just told the lawyer what he remembered. He knew that some things had been left out. The Tribunal considers that the applicant has been inconsistent in his descriptions about the level of harm that he suffered from the KSF. The Tribunal finds that the reasons that he gave for not previously raising the apparently brutal attack are not persuasive. The Tribunal considers that he [sic] evidence on this issue reflects adversely on his credibility generally.

The Tribunal then set forth an account of the explanation provided by the now Appellant as to the prior applications for other forms of visa and the delay in applying for a protection visa and matters not stated in his application for that visa. The Tribunal similarly concluded in respect to these issues as follows:

[119]    Based on the above-noted evidentiary concerns, it finds that the applicant is not a credible witness and that he has embellished his material claims in making his application for protection. The Tribunal does not accept that the applicant or other members of his family are extremist Hindus. It does not accept that he was a main or active member, activist or member of the student wing of the Shiv Shev or any other Hindu political or religious party. It does not accept that he came to the attention of the KSS or the SSF or the AISSF. It does not accept that he was (systematically or otherwise) harassed, his life or career threatened, hurt, or his home was raided by members of the KSS, SSF or AISSF, or that he had to escape from one place to the other in India, and on to Australia in order to save his life. It does not accept that that [sic] he is on a KSS, SSF or AISSF hit list or that he has been searched by members of these groups. It does not accept that he has had constant threats of death to his life. The Tribunal does not accept that the applicant received threatening calls after arriving in Australia, or that he stopped studying in Australia because of these calls or because he was concerned about the bombing in Punjab. It does not accepts [sic] that Sikhs in Australia have any adverse interest in him

Each of these conclusions was a factual conclusion which was open to the Tribunal.

22        Credibility findings, it is well accepted, are matters “par excellence” for the Tribunal to resolve (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], 168 ALR 407 at 423 per McHugh J) and without more are not reviewable by either the Federal Magistrates Court or this Court (Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 at [40]; SZOXP v Minister for Immigration and Citizenship [2011] FCA 923 at [26]; SZOUL v Minister for Immigration and Citizenship [2011] FCA 945 at [28]). See also: SZMPN v Minister for Immigration and Citizenship [2009] FCA 203 at [30].

23        Given the scarcity of the materials presented by the now Appellant in support of his claims, the findings as made by the delegate and the Tribunal are perhaps not surprising.

GROUND ONE – THE DECISION OF THE FEDERAL MAGISTRATE

24        Although Ground One of the Notice of Appeal is at least addressed to the decision of the Federal Magistrate, as opposed to the decision of the delegate or the Tribunal, there is absolutely no certainty in the “jurisdictional error” sought to be relied upon.

25        It is not clear whether it seeks to contend that the Federal Magistrate erred in failing to “determine” some unspecified “question of law” or whether it is in substance an allegation that the Federal Magistrate erred in failing to discern some unspecified “jurisdictional error” said to have been committed by the Tribunal.

26        On either construction, however, the Ground is without substance.

27        If it is the former alleged error, the deficiencies in the grounds upon which the application was advanced for resolution make it difficult to identify with any precision the “question of law” which the Federal Magistrate failed to “determine”. The absence of specificity in those grounds was a matter raised with the now Appellant by the Federal Magistrate and he, for whatever reason, declined an opportunity to amend. Having to resolve the unspecified grounds as best as they could be understood, no error is discernible in the decision under appeal.

28        To the extent that any former argument as to “prejudice” is sought to be maintained, it is rejected. No error, in particular, is exposed by the rejection by the Federal Magistrate of the claim as to “prejudice” on the part of the Tribunal. No transcript of the hearing before the Tribunal was relied upon before the Magistrate. Any argument as to “prejudice” – presumably another way of expressing an allegation that there was a “reasonable apprehension of bias” – was thus to be resolved by reference to either the reasons for decision of the Tribunal or by reference to the findings of fact that it made. But an allegation as to actual bias, it has been repeatedly said, will rarely be demonstrated solely by reference to the reasons for decision of the Tribunal: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J; SGJB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1601 at [121] per Jacobson J; SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 at [21], 131 FCR 102 at 107 per Kenny J; SZMOB v Minister for Immigration and Citizenship [2009] FCA 140 at [23] per Cowdroy J. And it has also repeatedly been said that no bias should be inferred solely from factual findings that were open on the material before the Tribunal: SZKIR v Minister for Immigration and Citizenship [2007] FCA 1786 at [33] per Collier J. See also: SZNUX v Minister for Immigration and Citizenship [2010] FCA 182 at [18], 114 ALD 123 at 126 per Yates J; SZORL v Minister for Immigration and Citizenship [2011] FCA 553 at [19].

29        If it is the latter error which is sought to be advanced on appeal, no “jurisdictional error” is discernible in the reasons for decision of the Tribunal and no error on the part of the Federal Magistrate in failing to discern any such error.

30        It is difficult to discern what is intended to be conveyed by that part of Ground One being the statement: “The applicant is not represented by a lawyer”. If that is a mere statement of fact, it does nothing more than state that fact; if it is intended to convey some entitlement to be provided with legal representation, any such entitlement is rejected. In Dietrich v The Queen (1992) 177 CLR 292 it was concluded that in certain circumstances a serious criminal proceeding may be stayed if a person is not afforded legal representation. But that is an incident of the Court’s power to stay an unfair criminal trial. The rules of procedural fairness in civil proceedings, it has been said, do not extend to requiring the provision of legal representation: New South Wales v Canellis (1994) 181 CLR 309 at 330 to 331.

31        Dietrich, it has been further concluded, has no application in respect to a decision of the Administrative Appeals Tribunal in deportation proceedings: Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265, 101 FCR 20. Sackville, Marshall and Lehane JJ there declined to extend Dietrich so as to require the provision of legal representation to the appellant who had invoked the jurisdiction of the Tribunal when seeking review of a decision to deport him from Australia. In doing so, their Honours concluded:

[18] There are formidable difficulties in applying the Dietrich principle to the hearing by the AAT of an application to review a deportation decision. The reasoning in Dietrich was based on two propositions. The first is that an accused person has a right to receive a fair trial according to law; the second is that the courts have the power to stay criminal proceedings which will result in an unfair trial. A criminal trial, of course, involves an adjudication of the guilt of the accused and, if guilt is established, the imposition of punishment. An administrative review of a deportation decision, even one based on criminal convictions, involves different considerations.

[19] The power to exclude or expel non-citizens is an incident of sovereignty over territory: …

[20] It has long been accepted that deportation of a non-citizen is not to be regarded as punishment for a criminal offence. …

…

[22] The limited scope of the principle in Dietrich was recognised by the High Court in New South Wales v Canellis (1994) 181 CLR 309. …

Their Honours then extracted passages from the judgments in that decision and continued:

[24] As these passages show, there is nothing in the reasoning in Dietrich to suggest that the decision applies otherwise than to a court hearing a prosecution for a serious criminal offence under Commonwealth, State or Territory law. In particular, there is nothing to suggest that the reasoning applies to administrative hearings, including a hearing by the AAT in the course of reviewing a deportation order made by the Minister's delegate. On the contrary, the rationale underlying Dietrich, namely the power of a court to stay proceedings in order to prevent an unfair criminal trial taking place, does not apply to an administrative review conducted by a tribunal no matter how serious the consequences for the individual concerned.

[25] There are other difficulties confronting the appellant. In a criminal trial, it is the prosecuting authority which initiates and conducts the criminal proceedings against the accused. A stay of proceedings until adequate legal representation is provided is doubtless an effective means of preventing the unfairness inherent in a trial for a serious criminal offence where an indigent accused is forced to represent himself or herself. In the present case, however, it was the appellant who sought review by the AAT of the decision to deport him. A stay of the AAT proceedings, of itself, would have achieved very little from the appellant's point of view, since the deportation order would have remained in force and he would have remained in detention pending deportation: …

This conclusion has since been applied by other Judges of this Court: NART v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1343 at [7] per Stone J; SZNOP v Minister for Immigration and Citizenship [2010] FCA 179 at [8] per Jagot J. Nor has Dietrich been extended to taxation proceedings before the Administrative Appeals Tribunal: Commissioner of Taxation v La Rosa [2002] FCA 1036 at [120] to [122], 196 ALR 139 at 161 to 162 per Nicholson J. See also: Brehoi v Attorney-General of the Commonwealth of Australia [2000] FCA 1747 at [17] per Hely J. Similarly, the principle established in Dietrich has not been extended to a proceeding before the Refugee Review Tribunal (MZXFU v Minister for Immigration and Multicultural Affairs [2006] FCA 1593 at [8] per Sundberg J; SZKMG v Minister for Immigration and Citizenship [2008] FCA 1062 at [31] per Reeves J) or the Migration Review Tribunal (Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17] per Perram J). See also: SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 at [4] per Gyles J.

32        The principle established by Dietrich should, perhaps, not forever be confined to proceedings involving serious criminal offences. The constraints imposed by Canellis must, of course, be recognised. Different circumstances may however, at some stage, warrant the principle being extended in an appropriate case. An applicant for refugee status, it has been recognised, is “engaged in an often desperate battle for freedom, if not life itself”: Abebe v Commonwealth of Australia [1999] HCA 14 at [191], 197 CLR 510 at 577 to 578 per Gummow and Hayne JJ.

33        Any attempt to give potential content to the first Ground of Appeal confronts difficulties. Those difficulties are only compounded when the explanation provided by the Appellant is taken into account. In his short oral submissions, he seemed to contend that the “question of law” or the “jurisdictional error” to which he referred was the mere commission by the Tribunal of factual error. If the Ground is approached on that basis, it is without substance.

34        The first Ground of Appeal is dismissed.

GROUND TWO – THE ATROCITIES COMMITTED

35        The second Ground of Appeal fails to identify any error said to have been committed by the Federal Magistrate.

36        It also suffers from the more fundamental difficulty that it is in substance an attempt to re-agitate the facts. But it is the task of the delegate and the Tribunal to resolve any factual dispute.

37        It is not the task of either the Federal Magistrates Court, or this Court on appeal, to itself make findings of fact. See: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [81], 93 ALD 333 at 352 per Young J (Gyles and Stone JJ agreeing). See also: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] per Gray, Tamberlin and Lander JJ.

38        Each of the findings made by the Tribunal, including its adverse findings as to credit, were all findings open to it on the material.

39        The second Ground of Appeal is without substance and is dismissed.

GROUND THREE – A FAILURE TO ADDRESS THE CLAIMS MADE

40        The final Ground of Appeal also suffers from the defect that it does not identify any specific error said to have been committed by the Federal Magistrate. It attributes a failure “to address the claim” to “the Respondents” – but the specific error said to have been committed by the Federal Magistrate remains unidentified. The third Ground also suffers from the further defects that it does not identify the “claim” which is said to have been not addressed; nor does it identify “the issue” which it is said was not the subject of “judgment/decision”.

41        The Federal Magistrate, it may be noted, suffered the same difficulty. Before the Federal Magistrate the now Appellant claimed that “the Tribunal ignored documents produced by the Applicant and ignored a ‘bundle of the evidence’”. But as noted by the Federal Magistrate, neither the “documents” nor the “evidence” to which reference was made were identified: [2011] FMCA 569 at [33].

42        Before this Court the Appellant failed to provide any greater assistance.

43        None of the “documents” or “claims” which were relied upon before the Tribunal have not been taken into account.

44        If the Appellant was intending to refer to the “further material” that he claimed he could rely upon if he were given an opportunity to attend a further Tribunal hearing, any such submission would be without substance. It is for a claimant to make out his claim before a delegate or the Tribunal at the outset. There was no suggestion before the Tribunal that resolved his claim that the now Appellant sought any adjournment in order to adduce further materials. It was for him to adduce the materials he wished to rely upon. He cannot have the benefit of one hearing before one Tribunal and – having been unsuccessful – then seek a further opportunity to adduce further material with a view to possibly seeking a different outcome.

45        The third Ground of Appeal is without substance. It, too, is dismissed.

CONCLUSIONS

46        Although there may be many circumstances in which it may be suspected that an unrepresented party may suffer serious disadvantages when attempting to conduct a proceeding in this Court, the present proceeding is not such a case. The difficulties confronting the Appellant were difficulties which arose at the outset when he first made his claims for a protection visa. The claims from the outset were not substantiated or even presented in any detailed manner. His subsequent attempt to provide an account of his claims before the Tribunal only exposed inconsistencies in his account and led to adverse findings as to credit.

47        His unrepresented status before both the Federal Magistrates Court and this Court has not prejudiced his chances of success.

48        The appeal is to be dismissed. There is no reason why the Appellant should not pay the costs of the First Respondent.

ORDERS

The Orders of the Court are:

1.    The Notice of Appeal as filed on 11 August 2011 is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or as taxed.

Associate:

Dated:    3 November 2011