FEDERAL COURT OF AUSTRALIA

SZOVG v Minister for Immigration and Citizenship [2011] FCA 1261

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

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 China.

2    He arrived in Australia on 29 August 2009 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 18 May 2010. He did not want to return to Hong Kong. A delegate refused that application on 29 July 2010.

3    On 31 August 2010 he applied for review of the delegate’s decision. The Refugee Review Tribunal on 31 October 2010 affirmed the delegate’s decision.

4    An application was then filed on 3 December 2010 in the Federal Magistrates Court of Australia seeking review of the Tribunal’s decision. That Court dismissed the application on 10 June 2011: SZOVG v Minister for Immigration and Citizenship [2011] FMCA 458.

5    A Notice of Appeal was filed in this Court on 30 June 2011.

6    The Appellant appeared before this Court on 2 November 2011 and was unrepresented. He was accompanied by an interpreter.

7    The appeal is to be dismissed.

Unsubstantiated Claims

8    The claims for protection as a refugee were unsubstantiated.

9    In the application as made to the Department in May 2010 the Appellant provided few details. A standard form “Application for a Protection (Class XA) Visa” that is completed by all applicants seeks details as to the claims being made. But the details provided by the now Appellant were few and far between. Thus, by way of example, one question which was asked was answered (without alteration) as follows:

What do you fear may happen to you if you go back to that country?

I MAYBE ARRESTED BY HONGKONG AUTHORY JUST BECAUSE I DO NOT LIKE THE COMMUNIST PARTY TAKES IN CHARGE OF HONGKONG. I WANT HONGKONG BELONGS TO ENGLAND FOREVER. I WAS PROSECUTED BY HONGKONG AUTHORITY JUST BECAUSE I DO NOT LIKE COMMUNIST PARTY. I HATE COMMUNIST PARTY.

Two further questions, and the answers provided (again without alteration), were as follows:

Why do you think this will happen to you if you go back?

I DO NOT LIKE THE COMMUNIST PARTY TAKES IN CHARGE OF HONGKONG. I WANT HONGKONG BELONGS TO ENGLAND FOREVER. I WAS PROSECUTED BY HONGKONG AUTHORITY JUST BECAUSE I DO NOT LIKE COMMUNIST PARTY. I HATE COMMUNIST PARTY.

Do you think the authorities of that country can and will protect you if you go back? If not, why not?

I WAS EVER PROSECUTED BY HONGKONG AUTHORITY BECAUSE I DO NOT LIKE THE COMMUNIST PARTY TAKES IN CHARGE OF HONGKONG. I WANT HONGKONG BELONGS TO ENGLAND FOREVER. I WAS PROSECUTED BY HONGKONG AUTHORITY JUST BECAUSE I DO NOT LIKE COMMUNIST PARTY. I HATE COMMUNIST PARTY.

10    An invitation to attend an interview before the Minister’s delegate met with no response. A later invitation extended by the Tribunal to attend a hearing before the Tribunal also met with no response. Correspondence was forwarded to the “mailing address” provided by the Appellant. The Tribunal also sent a copy to the Appellant’s “residential address” at Eastwood, but the documents sent to that address were returned with the notation “Unknown, RTS”. The correspondence forwarded to the “mailing address”, however, was not returned.

11    For present purposes that which matters is not any issue as to service – but, rather, the dearth of material upon which the claim was to be resolved. See also: SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244 at [16] to [23]. The conclusions of both the delegate and the Tribunal that it could not be found that the Appellant “faces a real chance of persecution should he be returned to the PRC” and that he “has a well-founded fear of persecution for a Convention reason” seem almost inevitable. It is to be recalled that the “mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is ‘well founded’ or that it is for reasons of political opinion”: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22, 191 CLR 559 at 596 per Kirby J. See also: SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 at [29]; SZOOM v Minister for Immigration and Citizenship [2011] FCA 152 at [22]; BZAAG v Minister for Immigration and Citizenship [2011] FCA 217 at [4].

12    And, as has been observed in another proceeding, the present case “has all the hallmarks of a litigant more committed to unmeritoriously prolonging his stay in Australia than genuinely presenting for consideration at the outset the factual material upon which those entrusted with fact-finding responsibilities can sensibly base a decision”: SZOOM [2011] FCA 152 at [35]. Special leave to appeal from this decision has been refused: SZOOM v Minister for Immigration and Citizenship [2011] HCASL 95.

13    Even an apparently unmeritorious case, however, may have merit when the grounds of appeal are examined. But such is not the present case.

The Application and Grounds of Appeal

14    The grounds upon which the application was advanced for resolution before the Federal Magistrate were expressed briefly. They were as follows:

1.    Refugee Review Tribunal was affected by jurisdictional errors on a breach of its obligation.

2.    Refugee Review Tribunal failed to give the prescribed period of notice.

3.    Refugee Review Tribunal has ignored relevant consideration in making the decision.

15    The Grounds of Appeal as stated in the Notice of Appeal filed in this Court were equally brief. They were expressed as follows:

1.    The Federal Magistrate Barnes FM was affected by jurisdictional errors on a breach of its obligation.

2.    The Federal Magistrate Barnes FM failed has ignored relevant consideration in making the decision.

3.    The Federal Magistrate Barnes FM failed to consider the Second Respondent was required to provide particulars of the information that was the reason or part of the reason for affirming the decision by Migration Act 1958.

The third and final Ground of Appeal, it is understood, seeks to raise an argument as to whether or not there has been compliance with s 424A of the Migration Act 1958 (Cth). It was not an argument advanced for resolution before the Federal Magistrate.

Jurisdictional Error

16    The first ground upon which the application was advanced before the Federal Magistrate, and the first Ground of Appeal to this Court, both fail to identify the “jurisdictional errors” alleged.

17    In many cases where an unrepresented party appears before this Court and alleges “jurisdictional error” it may well be doubted whether the party has any real understanding of the claim he seeks to advance. A failure on the part of such a party to identify with any greater precision the “jurisdictional error” sought to be relied upon is, accordingly, hardly surprising. And, as recognised by Kirby J, the “subtleties of ‘jurisdictional error’ have sometimes escaped experienced judges”: Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34 at [24], 179 ALR 513 at 518. See also: Brehoi v Minister for Immigration and Multicultural Affairs [2001] FCA 931 at [5]; Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995 at [6]; SZOHY v Minister for Immigration and Citizenship [2010] FCA 1267 at [11].

18    Whatever may be the difficulties, the Federal Magistrate nevertheless resolved the argument before that Court as follows:

14.    The first ground is a generally expressed contention that the “Refugee Review Tribunal was affected by jurisdictional errors on a breach of its obligation”. In oral submissions the applicant claimed that he did not agree with the Tribunal decision. However insofar as that indicates a wish to seek merits review, merits review is not available in this court.

19    No appellable error is discernible in the manner in which the Federal Magistrate resolved the argument as advanced before that Court and no jurisdictional error is otherwise discernible in the reasons of the Tribunal.

20    The first Ground of Appeal is dismissed.

Relevant Considerations

21    The third ground of the application as advanced before the Federal Magistrates Court has as its counterpart Ground 2 of the Notice of Appeal.

22    The Federal Magistrate resolved the ground when it was before that Court as follows:

16.    I will return to the particular issue of notice of the Tribunal hearing, but first note that there is nothing to establish that the Tribunal “ignored relevant consideration in making the decision” as contended in ground three. It is apparent from the material before the court that the Tribunal did not ignore any mandatorily relevant consideration in the sense of any integer of the applicant’s claims. Rather, it set out and considered those claims, but was unable on the limited material before it (given its queries and in circumstances where the applicant did not attend an oral hearing to address such concerns) to be satisfied of those claims.

17.    Insofar as the applicant said that what he meant by the third ground was that the Tribunal ignored a consideration of personal freedom, again, that seeks impermissible merits review. The Tribunal did consider the applicant’s claims as made in his protection visa application.

23    Again, no appellable error is discernible in the manner in which the Federal Magistrate resolved the argument. Indeed, given the scarcity of the material that was advanced for consideration by the Appellant, it is difficult to discern any consideration which he relied upon which was not considered. The fact is, as stated by the Federal Magistrate, the claim advanced by the now Appellant was considered and rejected.

24    The second Ground of Appeal is dismissed.

Section 424A — Particulars of Information

25    The third Ground of Appeal refers to a failure “to provide particulars of… information”.

26    Although unstated, this Ground of Appeal repeats the language of s 424A and it is thus understood that the Appellant seeks to contend that there has been a breach of that provision.

27    Section 424A(1) provides as follows:

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

Section 424A(3) gives further content to the term “information” and provides as follows:

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

“Information” for the purposes of s 424A does not include the information provided by a claimant when making a claim for a protection visa and does not include “doubts” or the “absence of evidence”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [16] to [18], 235 ALR 609 at 615 to 616. Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ there observed in part as follows:

[16] Four points must be noted about this submission. First, while questions might remain about the scope of para (b) of s 424A(3), it was accepted by both sides that information “that the applicant gave for the purpose of the application” did not refer back to the application for the protection visa itself, and thus did not encompass the appellants’ statutory declaration. …

…

[18] Third and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:

does not encompass the tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

See also: Minister for Immigration and Citizenship v SZLFX [2009] HCA 31 at [23], 238 CLR 507 at 513 to 514 per French CJ, Heydon, Crennan, Kiefel and Bell JJ.

28    The Appellant faces, however, two difficulties in respect to this final Ground of Appeal.

29    First, it is not an argument previously advanced before the Federal Magistrate. A general conclusion was expressed by the Federal Magistrate that the Tribunal had not failed to “comply with any of [the] obligations” set forth in Division 4 of Part 7 of the Migration Act: [2011] FMCA 458 at [15]. But such a general conclusion falls well short of resolving an argument of the kind now sought to be advanced in this final Ground of Appeal. Leave is necessary if it is to be an argument now relied upon.

30    Leave to raise an argument not raised at first instance may be granted 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. Kiefel, Weinberg and Stone JJ there concluded:

[46] In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so …

[47] In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

[48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

It has also been pointed out that to allow too readily the running of new points, or indeed a whole new case, on appeal is to undermine the appellate process by rendering the trial process almost irrelevant: WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 at [19], 204 ALR 624 at 629 per French J (as his Honour then was). See also: SZIHX v Minister for Immigration and Citizenship [2007] FCA 1295 at [16] to [17]; SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7] to [11].

31    The second difficulty confronting the Appellant in respect to this final Ground of Appeal is that it is – in any event – without merit. The Appellant did not identify and was unable at the hearing before this Court to identify the “information” to which the proposed Ground of Appeal was directed. Nor is it possible to discern from the reasons for decision of the Tribunal any “information” which could found any argument. Indeed, the reasons for decision record the Tribunal resolving the application for review simply upon the basis of not accepting the claims as made and – most relevantly – upon the basis of the “information” in fact supplied by the Appellant. Such “information” would fall within s 424A(3)(ba) and hence is “information” not within the reach of s 424A. The Tribunal correctly stated that it was not bound to accept claims uncritically and thereafter set forth the claims made by the now Appellant. It concluded that “[t]here is nothing to support these claims other than the applicant’s unsubstantiated assertions” and that there were “insufficient particulars provided”. There was no other “information” relied upon by the Tribunal. No “information” fell within the reach of s 424A which required notice to be given.

32    Leave to raise the final Ground of Appeal is refused.

Conclusions

33    There is no substance to either of the first two Grounds of Appeal. Leave to raise the third Ground of Appeal is refused. Consideration has also been given to the second ground relied upon before the Federal Magistrate but apparently abandoned in this Court. No appellable error is discernible in the manner in which the Federal Magistrate resolved this argument as to notice.

34    The appeal is thus to be dismissed.

35    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 appeal is dismissed.

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

Associate:

Dated:    7 November 2011