FEDERAL COURT OF AUSTRALIA

SZQBV v Minister for Immigration and Citizenship [2011] FCA 1391

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants 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    By notice of appeal filed on 5 October 2011, the appellants appeal from the decision of Federal Magistrate Cameron delivered on 20 September 2011. By such decision his Honour dismissed an application in a case dated 15 August 2011.

BACKGROUND

2    The appellants are husband and wife and are citizens of India. The appellants arrived in Australia on 21 March 2010 and thereafter the first appellant made an application for a protection visa. Such application included his wife, the second appellant. The first appellant claimed that in India he had been a member of the Bharatiya Janata Party (‘the BJP’) and that he left such party ‘in protest’ and became a member of the Congress Party. Thereafter he claims that he was targeted by members of the BJP and was required to leave India in fear of his life.

3    On 20 August 2010 a delegate of the first respondent (‘the Minister’) refused the application. Accordingly, the appellants applied to the second respondent (‘the Tribunal’) for a review of such decision.

THE TRIBUNAL

4    The Tribunal did not accept that the first appellant was a witness of truth; that he had worked for the Congress Party in 1997 or 1998; or that he had ever been a member of the BJP. The Tribunal found that the first appellant’s claim of harassment in 1997 was inconsistent with the fact that he was issued with his passport in 2005 but made no attempt to leave India until 2010. Further, the Tribunal observed that the first appellant gave no evidence of an alleged change of ownership of land and had provided details of a bank account which did not exist. The Tribunal did not accept that the first appellant was required to close his business because of attacks and threats which were allegedly made against him. The Tribunal rejected the first appellant’s claim that he had a well founded fear of persecution.

5    On 28 February 2011 the Tribunal dismissed the appellants’ application for review, finding it was not satisfied that either of the appellants were a person to whom Australia owed protection obligations under the United Nations Convention relating to the Status of Refugees 1951 and did not satisfy the criteria prescribed in s 36(2)(b) of the Migration Act 1958 (Cth) (‘the Act’).

FEDERAL MAGISTRATES COURT

6    The appellants applied to the Federal Magistrates Court of Australia (‘the FMC’) on 28 March 2011 for the following orders:

1.    An order in the nature of certiorari setting the purported decision of the Tribunal aside.

2.    An order of prohibition to restrain the Respondent from giving any further effect to the purported decision.

3.    An order in the nature of mandamus remitting the matter back to the Tribunal to be determined according to law.

7    On 2 May 2011 the FMC listed the proceedings for hearing on 20 July 2011. However the appellants failed to appear at the FMC on 20 July 2011 and the hearing was adjourned to 28 July 2011.

8    On 28 July 2011 the appellants again failed to appear and accordingly their application was dismissed pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (‘the FMC Rules’).

9    By application filed in the same proceedings on 15 August 2011, the appellants sought to reinstate the proceedings, by seeking the following relevant orders:

1.    An order to set aside the order dated 28 July 2011 by the Federal Magistrate Cameron.

2.    An order that no action is taken to remove the applicants from Australia while the decision is pending.

Findings of the Federal Magistrate

10    In his Honour’s decision delivered on 20 September 2011, Cameron FM observed that there were two questions which he was required to decide to determine whether the order dismissing the proceedings made on 28 July 2011 should be set aside, namely, whether the appellants had a satisfactory explanation for their non-attendance on that occasion and secondly, whether their claims in their substantive application had reasonable prospects of success.

11    Cameron FM found that although the appellants may have been unfamiliar with Australian court processes, they were well aware that the matter was listed for hearing in advance of the hearing and were also afforded a second opportunity to appear before the Court when they failed to appear on the first occasion. The learned Federal Magistrate observed that the first appellant’s oral submissions did not satisfactorily explain their failure to appear before the Court on both 20 July 2011 and 28 July 2011.

12    Cameron FM then considered whether the application before him had reasonable prospects of success. His Honour considered, in detail, the claims of the first appellant which were made in his protection visa application form and before the Tribunal on 27 October 2010. Cameron FM noted that the Tribunal wrote to the appellants on 15 November 2010 and invited them to comment upon information which his Honour considered might be a reason for affirming the delegate’s decision. Specifically such letter raised the question whether bank statements provided by the first appellant related to an invalid account. There was no response to such letter.

13    The Tribunal held its first hearing on 27 October 2010. Cameron FM also noted that the Tribunal held a further hearing on 21 February 2011. At such hearing the first appellant confirmed that the Congress Party candidate for whom he had worked was not the person suggested by the Tribunal when the Tribunal consulted the country information.

14    Cameron FM found that the Tribunal had dismissed the application for a protection visa. Essentially the Tribunal found that there was ‘a central and significant error and inconsistency’ in the first appellant’s evidence.

15    Cameron FM considered the grounds of the application for prerogative relief filed on 28 March 2011 which had commenced proceedings in the Federal Magistrates Court. Such grounds were as follows:

1.    That the decision of the Refugee review [sic] Tribunal was effected by jurisdictional error in that the Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicant claims;

2.    The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.

3.    The Tribunal exceeds is [sic] jurisdictional or constructively ailed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.

4.    The Tribunal did not use the country information as specific however, the general information gathered by the tribunal considered to weigh against my case in the final out come. The Tribunal used the all information for matter of reasoning and evaluation of my case for protection visa.

5.    The RRT member emphasised on some irrelevant questions at the hearing and ignored our profession and political background that put my life in danger. In doing so the Tribunal member have ignored relevant material and made finding which is erroneous or mistaken.

16    As to the first and second grounds, Cameron FM noted that the first appellant claimed that the decision of the Tribunal did not take certain relevant considerations or ‘integers’ central to the first appellant’s claims into account and, secondly, that the Tribunal failed to carry out its review function and to exercise its jurisdiction. His Honour found, in answer to both grounds, the Tribunal did consider the basis of his claims and accordingly rejected them.

17    The appellants’ third ground claimed that the Tribunal exceeded its jurisdiction or failed to properly exercise its jurisdiction and denied procedural fairness to the appellants because the Tribunal failed to investigate the first appellant’s ‘genuine claims’. In response to this ground his Honour observed that the appellants did not identify what obvious inquiry the Tribunal failed to make. His Honour referred to the decision in Minister for Immigration and Citizenship v SZIAI and Another (2009) 111 ALD 15 which held that there was no general duty on the Tribunal to make inquiries. Accordingly this ground was rejected.

18    Ground four of the application claimed that the Tribunal did not use country information provided by the appellants and apparently deferred to information which the Tribunal had obtained. Cameron FM found that even taking into consideration material contained in the first appellant’s written and oral statements, the weight to be given to such material was a matter entirely for the Tribunal. This ground was also dismissed.

19    The final ground raised by the application claimed that the Tribunal member ignored the appellants’ ‘professional and political background’ that allegedly placed the first appellant’s life in danger. However, Cameron FM observed that apart from such assertion there was no identification of the material which was allegedly ignored by the Tribunal. Further, the Tribunal had taken into consideration the political background of the first appellant’s claimed activities. Cameron FM also observed that there was no claim that the second appellant had any particular political interests.

20    For the reasons provided by Cameron FM as summarised above, his Honour found no merit in any of the five grounds raised in the application before the Federal Magistrates Court.

21    The first appellant had also sworn an affidavit on 25 March 2011 in which he claimed that there was bias in the Tribunal’s decision. However, his Honour noted that there was no evidence or submission made upon the question whether the Tribunal held any enmity towards the appellants or any interest in the outcome of their review. Further, the appellants had not pointed to any matter from which it was said that the Tribunal had made up its mind before giving its decision.

22    Accordingly, Cameron FM found that there was no basis for the allegation of bias.

23    Before Cameron FM the first appellant raised two further issues, namely, that he did not speak, understand or read English and did not understand the letter sent to him by the Tribunal. His Honour found that there was no requirement that the Tribunal communicate in any language other than in English.

24    The first appellant also claimed that the Tribunal had refused his claims because he had not been able to provide a letter from India to support his claims relating to his political activities. Cameron FM noted that such claim raised two issues. The first was whether the Tribunal was entitled to make its factual decision on the evidence before it. His Honour found that it was entitled to do so.

25    The second issue was whether the Tribunal erred in proceeding to make a decision without waiting for the first appellant to produce the letter he relied upon. Cameron FM noted that at the Tribunal hearing held on 27 October 2010 the Tribunal put to the first appellant its concerns relating to his claims of his political activities. The Tribunal’s decision recorded at [161] of its reasons that it had asked the first appellant if he wished further time to provide additional information concerning his Congress Party candidature in the Gujarati State elections and that the first appellant indicated that he would provide further information. Accordingly, the Tribunal allowed until 11 November 2010 for such information to be provided.

26    The first appellant provided no further information prior to the second Tribunal hearing on 21 February 2011. The decision of the Tribunal at [168] recorded that on 21 February 2011 it asked the first appellant whether there was anything the first appellant wished to say concerning his political involvement and the candidates for the Congress Party and asked whether he wished to provide further information. The first appellant replied that he had nothing further to add. The first appellant gave no reason why the information had not been provided within that time.

27    Taking all of the above matters into consideration, Cameron FM found that the appellants had failed to demonstrate that the appellants’ claim for constitutional writs had reasonable prospects of success. Accordingly Cameron FM dismissed the application.

THE APPEAL

28    The appellants raise two grounds of appeal by their notice of appeal filed on 5 October 2011 in this Court, namely:

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

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

Challenge to competency of Appeal

29    The Minister, by notice of objection to competency filed on 19 October 2011, objects to the appeal. The objection is made upon the ground that whilst s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (‘the Court Act’) gives the Court jurisdiction to hear and determine appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under law of the Commonwealth, the decision of Cameron FM is interlocutory.

30    The Minister submits that the decision of Cameron FM which confirmed dismissal is one in respect of which leave is required pursuant to s 24(1A) of the Court Act. No application for leave has been filed.

Hearing before this Court

31    The first appellant appeared before the Court unrepresented but assisted by an interpreter. The first appellant submitted that he wished to obtain protection and that he did not wish to go back to India because he had received death threats in that country. The first appellant claimed that the Tribunal member and the learned Federal Magistrate did not believe that the first appellant had been a leading figure in the Congress Party. The appellant did not make any further submissions

Findings

32    Cameron FM’s decision did not finally determine the rights of the appellants, since he was required to determine only whether the application for prerogative relief should be reinstated. His Honour had power to vary or set aside the order dismissing the proceedings made on 28 July 2011 if such order was an interlocutory order: see Rule 16.05 of the FMC Rules. It follows that his Honour’s decision, which is now the subject of appeal, was interlocutory.

33    In consequence, pursuant to s 24(1A) of the Court Act, an appeal from an interlocutory judgment is prohibited unless there has been a grant of leave. However, the Court has an unfettered discretion to consider whether leave should be granted: see Décor Corporation Pty Ltd and Anor v Dart Industries Inc (1981) 33 FCR 397 at 399.

34    The first respondent has, by its submissions, indicated to the Court that it has no objection to the notice of appeal being treated as an application for leave to appeal and considered in accordance with the principles explained by the Full Court in Décor Corporation at 398-400. At 398 of that decision the Full Court adopted the two stage process referred to in Niemann v Electronic Industries [1978] VR 431, namely to determine first whether the decision sought to be appealed from is attended with sufficient doubt to warrant its reconsideration, and second whether ‘substantial injustice’ would result if leave were refused.

35    The first ground of appeal raised alleges that the Tribunal ignored the aspect of persecution of the kind referred to in s 91R of the Act. The appellants claimed to be at risk of such persecution and claimed that the Tribunal’s failure to recognise such persecution constituted a breach of its ‘statutory obligation’.

36    It is important to recognise that this Court has no power to review the factual findings of the Tribunal, since fact finding is a matter solely for that Tribunal: see Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Durairajasingham (2000) 58 ALD 609 per McHugh J at [67]. In its deliberations, the Tribunal found that there was no basis for the appellants’ claim for persecution for the reasons referred to in its decision.

37    Further, whilst the appellants alleged that the Tribunal acted in a ‘manifestly unreasonable way’, no basis has been established from which the Court could conclude that the Tribunal’s decision was invalid by reason of unreasonableness in the Wednesbury sense: see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223.

38    With respect to the second ground, the Court observes no error in the Tribunal’s reasons for its decision. Such reasons demonstrate that it had considered the claims raised by the appellants in detail and gave comprehensive reasons for its factual conclusions.

39    As to the second ground of appeal, no errors are identified in the learned Federal Magistrate’s decision, and this Court is unable to discern any errors.

40    On an application of the kind now made, where the appellants are attempting to raise grounds of appeal which were not relied upon before the Federal Magistrate, it is necessary for the appellants to establish that the interests of justice demand that leave be granted for the grounds to be now relied upon: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [26]; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [163]-[164]. Such consideration includes an examination of the merits of the matter sought to be raised by the new grounds.

41    The Court finds that the grounds sought to be raised by the appellants on appeal would have no prospects for success. Essentially, their claims are no more than challenges to the factual findings by the Tribunal and disagreement by the appellants of such factual findings. However, the fact that the findings have been adverse to the appellants does not lead to the conclusion that the findings are irrational or unreasonable: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40].

42    It follows that the appeal is dismissed with costs.

Associate:

Dated:    9 December 2011