FEDERAL COURT OF AUSTRALIA

SZNOE v Minister for Immigration and Citizenship [2012] FCA 96

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the costs of the first respondent of and incidental to the appeal.

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

REASONS FOR JUDGMENT

1    The appellants appeal from a decision of the Federal Magistrates Court of Australia (SZNOE & Anor v Minister for Immigration & Anor [2010] FMCA 838) delivered on 10 November 2010 dismissing an application for relief by way of supervisory judicial review before that Court of an administrative decision of the Refugee Review Tribunal (the “Tribunal”) dismissing an application for review before the Tribunal of a decision of the delegate of the Minister for Immigration and Citizenship, dismissing an application by each appellant for a Protection Visa under the provisions of the Migration Act 1958 (Cth) (the “Act’).

Background to the Appeal

2    The appellants are husband and wife and citizens of India as determined by the Tribunal by its decision of 9 April 2009 (the “Tribunal decision”) at [67]-[68].

3    On 15 August 2008, the appellants arrived in Australia from India holding appropriate Visitor Visas (AB 64). They applied to the Department of Immigration and Citizenship for protection (Class XA) visas on 24 September 2008. The female appellant’s application was dependent upon the outcome of her husband’s application, she not having claimed separate refugee status (AB 52; s 36(2)(b) of the Act). However, before the Tribunal, the female appellant made claims to be a refugee in her own right. This aspect of the matter is discussed in more detail below.

4    The delegate advised the appellants of his decision to refuse the grant of protection visas under the Act on 20 December 2008 (AB 59). The appellants applied to the Tribunal for a review of the delegate’s decision on 15 January 2009. Two separate hearing dates were conducted on 24 March 2009 and 3 April 2009 ([38] of the Tribunal decision and (AB 81 and AB 87).

5    The appellant husband (who I will refer to generally in these reasons as the appellant) gave evidence to the Tribunal that he was born in Pehowa, Haryana in 1985; he attended school in Pehowa for 10 years and worked as a farmer from time to time following the completion of his schooling; after marrying on 1 January 2008, he moved to Chandigarh with his wife; and they then resided in Chandigarh until they left India for Australia holding tourist visas.

6    The appellant’s wife gave evidence that she was born in Satoura in 1987; speaks Hindi and Punjabi; and completed 10 years of schooling at the same school attended by her husband.

7    By his original application, the appellant claimed that his family had migrated from Pakistan to India and belonged to a lower Hindu caste (AB 50). After his family had migrated to India, his parents obtained a 50 year lease of farming land. The appellant claimed that when the Haryana Vikas Party (“HVP”) came into power, party members started a “movement against” migrant residents and discriminated against his family. The appellant suggests that members of the HVP were primarily higher-caste Hindus.

8    The appellant claims that higher-caste Hindus attacked his family whilst they were working in their fields in 2007 seriously injuring his father. He suggests that the attacks were motivated by a desire to “take possession of our lands by force”. He further claims that in 2007 the Indian National Lok Dal (“INLD”) and Bharatiya Janata Party (“BJP”) commenced agitating for the expulsion of migrant farmers such as his family from their land. The appellant states that his family’s attempts to solicit the aid of the police were corruptly rejected and that following a failed attempt to present a petition to the Police Commissioner, the appellant was taken into custody and tortured by a police officer. The appellant claims that he married his wife on 1 January 2008 against the wishes or her family who opposed the inter-caste, inter-faith, nature of the union and threatened him a number of times.

9    The appellant claims that subsequently his father-in-law visited the appellant’s parent’s house, demanding to know the whereabouts of the appellants, threatening the appellant’s parents, and stating that influence had been brought to bear with the police with the result that the police began looking for the appellants.

10    In essence, the appellant claimed before the Tribunal that he had a well-founded fear of persecution on the following grounds.

11    First, higher-caste Hindus and HVP, INLD and BJP supporters had, with the support of local authorities, attempted to, and were likely to continue to, attempt to expel him and his family from their leased land through the use of force and or political influence.

12    Second, his wife’s family opposed his marriage to their daughter on the basis of the inter-caste, inter-faith nature of the marriage and had acted on that opposition by threatening the appellant’s family and engaging police connections to find the whereabouts of the appellants.

The Tribunal’s decision

13    The appellants’ Notice of Appeal to this Court contends, in substance, that Federal Magistrate Burnett fell into error by failing to find that the Tribunal had fallen in the into jurisdictional error in the performance of the statutory review function by failing to properly consider the appellants’ claims, and by dealing with the claims in an unreasonable manner. It is therefore important to consider the approach adopted by the Tribunal in assessing the claims of the appellants and in reaching the findings.

14    The Tribunal affirmed the decision of the Minister’s delegate [98]. The Tribunal was not satisfied that either appellant was a person to whom Australia owed protection obligations under the Act (adopting the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (the “Convention”) [96]-[97]. As the appellant’s application had been rejected, his wife’s dependent application did not satisfy the requirements of s 36(2)(b) of the Act [97].

15    The appellants were self-represented but assisted by an interpreter at both hearing dates (AB 81 and 87 and [38]) before the Tribunal.

16    The appellants did not advance any new claims before the Tribunal [35]. The Tribunal accurately summarises the claims made by the appellant in his original application [26]. The Tribunal also noted that photocopies of the appellants’ passports attached to their original applications were in evidence before it and that the appellant’s passport contained stamps from travel to Cuba in October 2005 [28]. The Tribunal also noted that the Marriage Certificate attached to the application states that the marriage of the appellants took place on 1 January 2008 in the village of Satoura (the village where the parents of the appellant wife lived), according to “Hindu (Sikh) rites” and in the presence of relatives of both appellants [28].

17    The Tribunal noted that the appellant failed to provide a reply to a letter sent by the Tribunal (AB 76) which invited the appellants to comment on information the Tribunal considered could be part of the reason for affirming the decision under review [37]. The information the appellant had been invited to comment upon included the appellants’ period in Chandigarh and the reasons for the delayed departure from India; the circumstance that the marriage appeared to have occurred in Satoura according to Hindu (Sikh) rites in the presence of the relatives of the appellants; and, the husband’s travel to Cuba.

18    The letter also invited the appellant to provide additional information regarding his parent’s circumstances, including their caste; his travel to Cuba; his employment history; the appellants’ residency in Chandigarh; and, any other information that the appellants wished to provide. In response to the Tribunal’s questioning, the appellant appeared to suggest that he did not respond to the letter because he did not “understand it well” [41]. This letter was in issue before the Federal Magistrates Court (see [8] and [36] to [48] of the decision of the Federal Magistrates Court). However, any issue in relation to the letter was not agitated before this Court.

19    In dealing with the claims and evidence advanced by the appellants, the Tribunal noted that the appellant confirmed at the hearing that he feared persecution for the following two reasons as identified at [39] of the Tribunal decision, namely:

… (a) he feared that upper caste Hindus and the police would harm him in order to seize his family’s land; and (b) he feared that his father-in-law and others would harm him because of his marriage (to the applicant wife) and that the authorities would deny him protection from this harm because he is a lower caste Hindu. …

20    The Tribunal noted that whilst the appellant’s wife completed Form 866D as a person who did not have a refugee claim of her own, both appellants at the hearing claimed that the appellant’s wife feared persecution from her family owing to their opposition to appellants’ marriage [39].

21    The Tribunal’s findings and reasons are set out at [67] to [98]. The Tribunal accepted that the appellants were Indian, husband and wife, and Hindu and Sikh respectively [67]-[68]. The Tribunal characterised the Convention grounds on which the appellant husband claimed to have a well-founded fear of persecution at [69]-[71] in these terms:

69.    … He claims to fear persecution because of the “land issue” and because of his interfaith, inter-caste marriage with the applicant wife. He fears that upper-caste Hindus, particularly members of the INLD, BJP and Vikas parties, will seize his family’s land and kill him. He claims that the authorities will connive with his influential persecutors. He also fears that his in-laws will harm him, because of their opposition to the marriage. The authorities will deny him protection from such harm because he is a lower caste Hindu.

70.    These claims relate to the Convention grounds of religion, political opinion and membership of a particular social group. With respect to his membership of a particular social group, the Tribunal is satisfied that Indian … castes are groups that have identifiable characteristics or attributes, such as their designation, occupation or social function. It is also satisfied that the possession of such a characteristic or attribute distinguishes the group from society at large, and that it is not the shared fear of persecution.

71.    In the present case, the Tribunal finds that the applicant’s circumstances could relate to particular social groups defined as ‘lower caste Hindus’, ‘lower caste Hindus married to a Sikh’ or ‘migrated residents’ (Hindus who have migrated from Pakistan). … [The Tribunal] accepts that there is a particular social group of ‘lower caste Hindus’. It is also satisfied that there are also particular social groups consisting of ‘lower caste Hindus in inter-faith marriages’ and ‘Hindus who have migrated from Pakistan’, as they have a characteristic or attribute that distinguishes them from the society at large. It considers the applicant’s claims on the bases of these possible particular social groups.

22    At [71], the Tribunal expressed the view that the broad term “lower caste Hindu” was not sufficiently precise to distinguish such people from society at large, in the Indian context. However, for the purposes of the Tribunal’s decision in exercising the review function, the Tribunal was willing to accept that there is a particular social group of “lower caste Hindus”. Thus, the Tribunal adopted a favourable interpretation of the notion of a “particular social group” for the purposes of Art 1A(2) of the Convention in assessing the claims of the appellants, despite the failure of the appellant husband to further particularise the caste group to which he belonged. The Tribunal framed its acceptance of the particular social groups in the terms quoted above at [71] of the Tribunal decision.

23    The Tribunal then proceeded to assess what is described as the “land claims issue” and the “inter-faith marriage issue”.

The land claims issue

24    The Tribunal accepted that the appellant’s father was a farmer and relied upon his land to generate income. However, the Tribunal concluded that “… there was no dispute over land with upper-caste Hindus or anyone else” [75]. The Tribunal considered that the following factors, considered cumulatively, warranted a conclusion that the appellant had fabricated the land claims issue and associated harm. The Tribunal identified three reasons:

First, the applicant told the Tribunal that his father is still at his residential address and on his farm, to the present day. As discussed at the hearing, the Tribunal considers that - given the applicant’s claims that he and his father were under pressure to forfeit the land, that his father was attacked and hospitalised in 2007, and that the applicant fled the area (going into hiding in 2007, and later moving on to Chandigarh and now Australia) – the upper-caste Hindus had plenty of opportunity to seize the land if they had wanted to. Their failure to do so is compelling evidence that there is no land dispute at all.

25    The Tribunal noted that at the hearing the appellant contended that he had organised protests and deterred his opponents from seizing the land. He spoke of neighbours looking after the land in his and his father’s absence. The Tribunal observed that the appellant’s evidence on these matters seemed improvised and the Tribunal “formed the view that he was scrambling to reconcile his evidence that his father remains on the land with the substance of his refugee claims”. The Tribunal said at [76] that it did “not accept on the evidence that the applicant took any measures to prevent the illegal takeover of his family’s land”.

26    The second reason identified by the Tribunal is put in these terms at [77]:

Second, the applicant’s knowledge of the land and its ownership or tenure was so uncertain that the Tribunal does not accept that it is the subject of any dispute. The Tribunal had difficulty eliciting from the applicant basic information about the land, such as whether it was subject to a 50-year lease that would normally have expired in 2007. … The applicant said that he did not know much about the land because he had concentrated on his studies. However, as noted at the hearing, this is difficult to believe in light of the applicant’s claims that he is an only son and that from 2002, when he finished school, he devoted all his time to farm work. In all, the Tribunal considers that the applicant has given untruthful evidence about this employment, his attachment to the land and the existence of a land dispute.

27    The third reason identified by the Tribunal is put in these terms at [78]:

Third, as the applicant indicated at the hearing, the INC (Congress) won his seat during the 2005 Haryana State election. He claims that upper caste Hindus with links to other parties … have targeted his family [and] that these people influence the local authorities, who fail to protect the applicant and his family. The applicant’s evidence as to whether his family had sought the assistance of their Congress Party representative was, in the Tribunal’s opinion, evasive. The Tribunal does not accept that the applicant, who has education and a claimed direct stake in the land, knows nothing about whether his father sought help from local politicians, if he needed it. The Tribunal considers that the applicant side-stepped this and similar questions because his claims about the land dispute are not truthful, and his efforts to give it a political flavour are also without any basis.

28    The ultimate conclusion arising out of a consideration of these matters is expressed by the Tribunal at [79] in these terms:

The above factors lead the Tribunal to conclude that the applicant and his family are not involved in any land dispute, or subject to any threats, motivated by caste or quasi-political factors. … [The applicant’s] apparent readiness at the hearing to downplay this claim, in favour of the marriage-based claim, once he realised the extent of the Tribunal’s concerns, further supports the Tribunal’s finding. The Tribunal finds that this claim, and the alleged harm associated with it, are fabricated. It does not accept that the applicant and his father were attacked in 2007 (including that his father was injured and hospitalised, and that the applicant had to flee the area); that the applicant’s family were subject to any other intimation or harm …; that the police refused to accept any complaints …; or that the applicant has suffered any associated harm.

The inter-faith marriage issue

29    The Tribunal accepted that the appellants married in January 2008 and that they were from the Hindu and Sikh communities respectively [80]. The Tribunal rejected the claim that the appellants had faced any problems by reason of their inter-faith or inter-community marriage [81]. The Tribunal further rejected the appellant’s claims that his father-in-law abused or threatened him or his family in relation to the marriage or any other subject [85]. The Tribunal reached these conclusions having regard to the following concerns.

30    First, the Tribunal placed weight on the fact that the Marriage Registration Certificate (AB 34) stated that the couple were married in Satoura, the appellant wife’s home village; the wedding was conducted according to “Hindu (Sikh) rites and Ceremonies”; and, the wedding was “in the presence of relatives of both the parties” [82]. The Tribunal was not convinced by the appellant’s claim that only friends were present. The Tribunal dismissed the appellant’s suggestion that the availability of wedding photographs showing only friends present, established that the family of the appellants were not present at the wedding. The Tribunal regarded the certificate as persuasive evidence that both families were present; the marriage had the support of both families; and, no conflict arose from the different faiths or castes of each party.

31    Second, the Tribunal found the appellants’ account of how they managed to arrange their marriage, despite the claimed opposition, as “unconvincing”, “vague” and “uncertain” [83]. The Tribunal also regarded the appellant’s evidence concerning his claim that a student friend had funded their living expenses during their six month co-habitation in Chandigarh, and paid for their trip to Australia, as “piecemeal and unforthcoming”. It light of these difficulties, the Tribunal rejected the claim that the relationship between each appellant had generated family opposition and consequent threats or harm. The Tribunal found that appellants’ account of their funding and living relationships to be untruthful [83].

32    Third, the Tribunal found that the timing of the appellants move to Chandigarh; their continued residence in Chandigarh for six months without any threats; and their unhurried departure to Australia, suggested that their relationship “did not generate any serious opposition from the wife’s family or anyone else, for any reason” [84].

33    The Tribunal made the following further findings.

34    The Tribunal found that the appellant had given a misleading account of his and his family’s economic and social standing having regard to the fact that the appellant was able to afford a tourist trip to Cuba and the “generally evasive” nature of his oral evidence [88]. The Tribunal then observed that on the available evidence it did not accept that the appellant had, in the past, experienced discrimination amounting to persecution for any Convention reason. The Tribunal observed that it was satisfied that there was no “real chance” of the appellant experiencing such discrimination in the reasonably foreseeable future [88].

35    The Tribunal further observed that as a corollary to its rejection of the appellant’s claims regarding the land dispute and his claims of opposition by his in-laws to his marriage, the Tribunal rejected the appellant’s claims that the police had refused protection to the appellant and his family; that the police supported his opponents; or that the possible lack of police protection afforded his opponents an opportunity to threaten him [89]. Thus, the Tribunal could not accept that the appellant had been denied police protection for any Convention-related reason arising from his claims of a well-founded fear of persecution [90]. The Tribunal further found that there was no real chance that the appellant would be denied protection in the future as a result of his lower-caste Hindu or Pakistani origin or by reason of his marriage to a Sikh [91].

36    At [92], the Tribunal concludes, in the following terms, its consideration of the appellant’s claims:

The Tribunal has considered the applicant husband’s claims individually and cumulatively, including the combined effect of being a lower caste Hindu whose family originated in Pakistan and who also married a Sikh. Based on the findings above, and its adverse view of his credibility, it does not accept that he has experienced or faces a real chance of experiencing Convention-related persecution, now or in the reasonably foreseeable future.

The appellant wife’s claim

37    The Tribunal at [93] to [95] considered the claims of the appellant wife.

38    As mentioned previously, the appellant wife, by her protection visa application, did not claim refugee status in her own right but on the footing of her membership of the appellant’s family, as his wife. However, before the Tribunal, the appellant wife claimed to have been held captive and abused by her father on account of her relationship with the appellant ([64] and [94]). The Tribunal was prepared to accept in the circumstances that the appellant wife had made an implied application for refugee status in her own right, based on “… her fear of harm from her family members because of their opposition to the marriage” [94].

39    Taking into account the manner in which the appellant wife significantly qualified her claim, when questioned by the Tribunal, that her father held her captive, and also taking into account the contents of the Marriage Registration Certificate, the Tribunal found that there was strong evidence to suggestion that there had been no opposition to the marriage from within the appellant wife’s family [95]. The Tribunal therefore rejected the appellant wife’s claim that her father or other family members detained or otherwise mistreated her. The Tribunal concluded that there was no real chance of the appellant wife experiencing persecution for any reason arising from her marriage [95].

The decision of the Federal Magistrates Court of Australia (the “principal decision”)

40    The appellants filed an application on 8 October 2009 before the Federal Magistrates Court seeking judicial review of the Tribunal’s decision. Whilst the appellants did not have the benefit of legal representation in preparing their application to that Court, they were assisted in the preparation of written submissions. They were represented at the hearing by counsel.

41    At the hearing of the application, the appellants’ counsel confirmed that three of the four grounds relied upon by the appellants in their application would not be pressed in the course of the hearing [8]. Only ground 3 (of the four grounds) was agitated at the hearing which in submissions prepared on behalf of the applicants (before the Federal Magistrates Court) was particularised (as Federal Magistrate Burnett noted at [9] of the principal judgment) in this way:

(c)    The Tribunal failed to consider all elements of the Convention definition as it applied to the applicant;

a)    That the male applicant had a well founded fear of persecution on the basis of the ownership of land by his family; and

b)    That the male and female applicants had a well founded fear of persecution on the basis of their mixed marriage.

42    Apart from these matters, the applicant contended before the Federal Magistrates Court that the Tribunal had requested the applicant to provide “additional information” in reliance upon s 424(2) of the Act but in doing so had failed to comply with s 424(3) and s 424B of the Act.

43    The first ground (ground (c)) involved two parts.

44    First, it was said that the Tribunal had failed to properly classify, and therefore consider, the particular social group to which the appellant belonged ([10] of the principal decision).

45    Second, it was said that the Tribunal’s findings, particularly in respect of the land claims, were “founded in suspect reasoning” ([29] of the principal decision).

46    For present purposes it is sufficient to note that Federal Magistrate Burnett rejected both arguments put in support of ground (c) and the argument concerning s 424(3) and s 424B of the Act ([27]-[28], [34]-[35] and [47]-[48] of the principal decision). The particular reasons in support of the orders made by Federal Magistrate Burnett will be examined in the context of the grounds relied upon by the appellants in the appeal to this court.

The appeal to the Federal Court of Australia

47    On 11 May 2011, the appellants were given leave to file a Notice of Appeal from the decision of the Federal Magistrates Court, out of time (AB 121). On 31 May 2011, the time for filing a Notice of Appeal was extended from 31 May 2011 to 24 June 2011 (AB 123). The appellants filed a Notice of Appeal on 22 June 2011 raising the following grounds of appeal (AB 124):

1.    The Hon. FM failed to take consideration that the [Tribunal] committed jurisdictional error by failing to address the [appellants’] claims in the way [they] were made.

Particulars:

a.    The applicant stated in his protection visa application that he was born in a lower caste family in India.

b.    The higher caste Hindus attacked the applicant and tried to seize the applicant’s land by force.

c.    The applicant father-in-law threatened to [hurt] family members and abused them.

d.    The INDL and BJP members began agitating to have migrant farmers expelled.

2.    The Federal Magistrate failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the [appellants’] claim 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.

48    The appellants appeared in person with the assistance of an interpreter at the hearing of the appeal on 31 August 2011. The appellants did not file any written submissions in support of their grounds of appeal.

49    When asked at the hearing of the appeal if there was anything the appellant wanted to tell the Court in support of the grounds of appeal, the appellant said that he wanted justice; his “father in law is against me”; if he were to return to India his father-in-law would cause “problems for me”; and, he and his wife “have borne a lot of difficulties [in India]” (T 9, lns 1-14).

50    Counsel for the respondent contends that the appellants’ oral submissions simply go to the merits of the Tribunal’s decision. The respondent otherwise relies upon the written submissions.

Further Evidence

51    At the hearing of the appeal the appellant sought to rely upon copies of three affidavits sworn in Pehowa, India, marked MFI A, B and C respectively, and a copy of a document in Hindi, marked MFI D. None of these documents were before the Tribunal or the Federal Magistrates Court.

52    The three affidavits address the circumstances of the appellants’ marriage. They are in terms that might properly be described as a standard form although the deponents are three separate individuals. Each affidavit recites the same facts and, in essence, says that whilst the appellants were married on 1 January 2008 in Satoura according to Hindu (Sikh) rights, and in the presence of relatives of both parties, the marriage of the appellants had “not [been] consented by the father of [the appellant wife]” because he was not “agreed upon the marriage” by reason of its inter-caste nature. The affidavits further recite that the appellant wife’s father is still not “agreed upon this marriage”.

53    The affidavits marked MFI A and B are dated 24 August 2011. The affidavit marked MFI C is dated 25 August 2011. The appellant said at the hearing on 31 August 2011 that he had received the affidavits two weeks prior to the hearing (T 5, ln 19). It appears to be more likely that the appellant received the affidavits sometime in the week before the hearing, having regard to the date on which each affidavit appears to have been sworn.

54    As MFI D is written in Hindi, the appellant was asked by the Court to read the contents of the document to the interpreter so that the interpreter could explain the contents of the document to the Court. Through the interpreter, the appellant said that MFI D is a document created by an Indian police clerk in order to record a complaint lodged by the appellant wife’s father against the appellant husband (T 7, lns 1-25). Although the interpreter’s translation of the husband’s reading of the document was not without confusion, the essence of the complaint lodged by his father-in-law, according to the appellant, appears to be that the appellant had abducted or taken the appellant wife without the father-in-law’s consent to their marriage, and that consequently the father-in-law was seeking the assistance of the police to locate the appellants (T 8, ln 10-30). The appellant said that the complaint was dated 23 January 2008. He further said that he received a copy of MFI D one week prior to the hearing after a friend emailed a copy to him (T 8, ln 39). When asked to elaborate upon how his friend came to obtain the report, the appellant appeared to suggest that his friend had obtained the copy from another friend (T 8, lns 42-44).

55    The first respondent objected to the receipt of this fresh evidence on appeal predominately on the ground that no special circumstances had been made out which warranted the receipt of fresh evidence. The first respondent contended that in any event the documents went to the merits of the Tribunal’s decision (T 5, lns 40-47; T 9, lns 32-35; T 10, lns 6-9). The Court reserved its decision on the question of whether the documents would be received into evidence and proceeded to hear the appeal (T 9, lns 20-25).

56    Although s 27 of the Federal Court of Australia Act 1976 (Cth) makes it plain that further evidence may be received on the hearing of an appeal, the reluctance to receive fresh or new evidence on appeal, not before the original decision-making body, is well established. See generally MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 at [10] per Gordon J and the authorities cited by her Honour.

57    In principle, evidence which was not before the original decision-maker will only be admitted where that evidence is required to establish a contention that raises a question, such as whether jurisdictional error is demonstrated: see SZJBD v Minister for Immigration and Citizenship (2008) 102 ALD 622 at [24] per Siopis J; MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 at [11] per Gordon J; and STKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 546 at [20]-[22]; see also NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24 at [41]-[44] and [51]-[55] per Beaumont, Lingren and Tamberlin JJ; and M211 of 2003 v Minster for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 at [30] per Crennan J.

58    In the present case, the material sought to be admitted by the appellants is directed solely towards a contention that the Tribunal made erroneous findings of fact in dismissing the appellants’ claims of a well-founded fear of persecution for a Convention reason. All four documents are directed to establishing that the Tribunal erred in concluding that the appellants did not experience any problems (persecution, harassment and harm) as a result of the appellant wife’s family’s objection to their inter-caste marriage. The appellants did not make any submissions concerning the manner in which the fresh evidence might be relevant to making good a claim that the Tribunal fell into jurisdictional error.

59    In Waterford v The Commonwealth (1987) 163 CLR 54 at 77 and 78, Brennan J observed that “[t]here is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact”.

60    Accordingly, the Court will not receive the further material into evidence.

Leave to raise new grounds of appeal

61    The first respondent contends in submissions at [25] that neither of the appellants’ current grounds of appeal were agitated before the Federal Magistrates Court. The first respondent does however concede that due to the lack of particularity in the grounds of appeal and the equivocal way the grounds are framed, it is difficult to contend, with any ultimate confidence, that the subject matter of the grounds now pursued were not raised below. The first respondent contends at [27] of the submissions, that leave to raise these new grounds should be refused primarily on the footing that these grounds have no merit and are therefore likely to fail.

62    However, having regard to the following matters, the Court will consider the merits of the grounds raised by the appellants.

63    First, the present grounds of appeal raise matters which were, in essence, in issue before the Federal Magistrates Court, namely, whether the Tribunal failed to correctly characterise and consider the appellants’ claims and whether the Tribunal arrived at a decision that was open to it on the evidence.

64    Second, the lack of particularity in the Notice of Appeal is, in part, explained by the fact that the appellants are self-represented and do not speak English as a first language.

65    Finally, even if the grounds now sought to be agitated have previously not been expressly raised before the Federal Magistrates Court, it is necessary to consider the merits in any event as the likely success or otherwise of a new ground is a matter to be considered in determining whether the interests of justice are served by granting leave: SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [25]-[26].

Ground 1 of the grounds of appeal

66    To the extent that ground 1 suggests that the Tribunal fell into jurisdictional error by failing to take into account the matters at (a) to (d), the contention as to error must fail for the following reasons.

67    As to particular (a), the Tribunal expressly dealt with the claim of the appellant to have been born into a lower-caste family in India. Despite the appellant’s failure to provide further particulars of the caste to which he or his family belonged, the Tribunal found that he was an Indian citizen and assessed the appellant’s claims on the basis that he might fall into three possible social groups: lower-caste Hindus; lower-caste Hindus in inter-faith marriages; and, Hindus who have migrated from Pakistan (see [67]-[71] of the Tribunal decision).

68    As to particular (b), the Tribunal expressly considered in some detail the appellant’s claim that higher-caste Hindus attacked the appellant and tried to seize his family’s farm land by force ([26], [47]-[52] and [75]-[79] of the Tribunal decision). However, the Tribunal concluded that the appellant had fabricated these claims and that his family was not involved in “any land dispute, or subject to any threats, motivated by caste or quasi-political factors” [79] of the Tribunal decision).

69    As to particular (c), it is clear that the Tribunal considered the appellant’s claims that his father-in-law threatened and abused him and his family ([26], [54]-[57] and [82]-[85] of the Tribunal decision). However, the Tribunal rejected the claims that the appellant’s in-laws had abused or threatened the appellant or his family ([85] of the Tribunal decision).

70    As to particular (d), the Tribunal noted the appellant’s contention that INDL and BJP members had agitated to have migrant farmers expelled from their land ([26], [31] and [69] of the Tribunal decision) and the Tribunal appears to have clarified with the appellant at the hearing that the content of the appellant’s claim was that upper-caste Hindus associated with political parties were responsible for the claimed attacks on his family’s farm ([48] of Tribunal decision). In any event, the Tribunal concluded that the appellant’s family was not involved in any dispute with anyone in relation to their land ([75] and [79] of the Tribunal decision).

71    Further, to the extent to which ground 1 implicitly criticises the findings of the Tribunal concerning the appellant’s claims, without any further particulars or content to the contentions, the claims simply amount to no more than impermissible merits review (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6 per Brennan J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p 272; and Minister for Immigration and Citizenship v SZJSS (2010) 85 ALJR 306 at [26]).

72    The appellants did not at any stage challenge the conclusion of Federal Magistrate Burnett at [49] of the principal decision that the decision of the Tribunal on the facts was one clearly open to it.

73    The final matter arising from ground 1 is the appellants’ contention, advanced before the Federal Magistrates Court, that the Tribunal failed to address a claim which arose on the material before the Tribunal, namely, that the appellant husband held a well-founded fear of persecution by reason of his membership of a social group defined as “lower-caste Hindus owning land” ([10]-[11] of the principal decision). In argument before the Federal Magistrates Court, it seems that the appellants relied upon the contention that the Tribunal had failed to explicitly consider the possibility that the husband’s circumstances arguably disclosed a fourth social group, namely, “lower-caste Hindus owning land”.

74    This contention of error on the part of the Tribunal is raised implicitly by ground 1 of the present Notice of Appeal, although not expressly. The way in which the contention is framed involves the notion that Federal Magistrate Burnett fell into error by failing to find jurisdictional error, on this footing, on the part of the Tribunal. It should be noted that neither party addressed submissions on the issue although, of course, the appellants did not really make any substantial submissions in support of their appeal at all.

75    The authorities concerning whether the Tribunal’s failure to consider a claim not expressly articulated by an applicant but arguably raised implicitly on the papers, might amount to a jurisdictional error, are well known and do not require any detailed exploration in these reasons: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]-[63]; and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [45]-[47]. It is sufficient to note that a failure on the Tribunal’s part to deal with a claim raised by the evidence and contentions made before the Tribunal, which might be dispositive of the review, can amount to a jurisdictional error, if the failure goes so far as a failure to discharge the statutory review function cast upon the Tribunal by the Act.

76    For the reasons exposed by Burnett FM at [13]-[17], the Tribunal’s reasons reveal that the Tribunal was astute to the importance of the conjunction between the husband’s status as a member of a lower-caste and his family’s ownership of land, when considering the appellant’s claims to hold a well-founded fear of persecution for the reasons he identified and contended, were Convention reasons.

77    Further, in circumstances where the Tribunal makes a positive finding that there is no real chance that the appellant would face Convention-related persecution in India now or in the reasonably foreseeable future for any reason, it is not necessary for the Tribunal to consider whether a social group described as “lower-caste Hindus owning land” constitute a social group for the purposes of the Refugees Convention (and the Act), and if so, whether the appellant is (and at the relevant time was) a member of such a group, in order for the Tribunal to properly discharge the statutory review function and thus properly determine to affirm the delegate’s decision: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]. Put another way, this is a case where “the factual findings relating to one asserted basis for protection necessarily and inevitably denied any other basis for protection”: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [95] per McHugh, Gummow and Hayne JJ.

78    Further, as Burnett FM correctly notes, there is clear authority for the proposition that the principles exposed by Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 do not require the Tribunal to consider whether the particular social group of which the appellant claims to be a member (either expressly or implicitly by reason of the material) is a “social group” for the purposes of Art 1A(2) of the Refugees Convention (and the Act), in circumstances where the Tribunal has found that the appellant does not hold a well-founded fear of persecution as contemplated by s 91R(1) of the Act for any Convention reason (MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 at [18], [25] and [29] per Finkelstein J; SZJRU v Minister for Immigration and Citizenship [2009] FCA 315 at [49]-[50] per Besanko J; and BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543 at [21]-[25]). Unless the Tribunal makes a jurisdictional error, on the question of fact of whether the applicant holds a well-founded fear of persecution for any one of the contended reasons, no jurisdictional error arises by the mere failure to indentify and consider the precise social group to which the applicant claims membership.

79    In any event, a proper reading of the Tribunal’s reasons makes it clear that the Tribunal took into account the appellant’s claims of persecution and harm in the context of the appellant’s lower-caste status and his and his family’s ownership of land. The Tribunal was plainly aware that what was being contended for it was a claim of persecution based upon upper or higher-caste Hindu members expressing aggression and harm towards the appellant and his family as lower-caste land-owning Hindus. That is why the land claim issue was isolated and addressed as a separate issue by the Tribunal.

80    Accordingly, ground 1 must necessarily fail.

Ground 2 of the grounds of appeal

81    Ground 2 contains two contentions.

82    First, a contention that Federal Magistrate Burnett erred in failing to find that the Tribunal acted in a “manifestly unreasonable way” in dealing with the appellants’ claims.

83    Second, a contention that Federal Magistrate Burnett “ignore[ed] the aspect(s) of persecution and harm in terms of Sec 91R of the Act”.

84    As to the first contention, a claim that a decision is affected by “unreasonableness” is not materially different from an allegation that a decision is affected by “illogicality” or “irrationality”: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] Crennan and Bell JJ. A contention that the reasoning of the Tribunal is “irrational”, “illogical” or “unreasonable” may merely be an expression of emphatic disagreement with the reasoning and findings of the Tribunal: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J; Re Minister for Immigration and Multicultural Affairs Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [5] per Gleeson CJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [124].

85    For the criticism to go beyond mere emphatic disagreement with a conclusion on the facts open to the Tribunal, the appellant must characterise the suggested error within the legal rubric under which a recognised foundation for a challenge to the decision properly arises: Applicant S20/2002 at [5] and [9] per Gleeson CJ.

86    Justices Crennan and Bell have suggested that for an appellant to establish that a decision of a Tribunal was affected by jurisdictional error by reason of “illogicality” or “irrationality” an appellant must show that the decision reached “… in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision-maker could arrive on the same evidence”: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]. Their Honours further noted at [131] that:

… If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

87    Absent any particulars, the appellants’ contention that the Tribunal’s decision was “manifestly unreasonable” is unsustainable. A review of the Tribunal’s reasons makes it clear that the principal reasons for rejecting the appellants’ claims were the Tribunal’s conclusions arising out of its analysis of the content of the claims which were extensively addressed; and the adverse findings concerning the evidence of each appellant and particularly the male appellant as to credit. It is also clear that the Tribunal’s ultimate finding that neither appellant had suffered persecution for a Convention reason, and that no real chance was demonstrated that either appellant would suffer such persecution in the foreseeable future, was open to the Tribunal on the material before it.

88    As to the second contention forming part of ground 2 that Federal Magistrate Burnett “ignore[ed] the aspects of persecution and harm in terms of Sec 91R of the Act”, this allegation rises no higher than an unparticularised assertion and cannot succeed. The Tribunal having correctly identified the principles to be applied, nothing in the Tribunal’s reasons suggests (in reaching its conclusion that it could not be satisfied that Australia owed protection obligations to the appellants), that the Tribunal applied an incorrect test.

89    Accordingly, ground 2 is not made out.

90    In summary, a review of the Tribunal’s reasons makes it clear that the Tribunal considered in some detail the appellants’ claims of feared persecution in the context of the asserted land issue and the inter-caste marriage issue. The Tribunal rejected the claims in respect of the land issue because it thought the male appellant had fabricated the claims. The Tribunal rejected the claims of the appellants in respect of the inter-caste marriage issue because the Tribunal could not be satisfied that the appellants’ marriage was opposed by either family.

91     It follows that the appeal must be dismissed with an order that the appellants pay the first respondent’s costs of and incidental to the appeal.

Associate:

Dated:    20 February 2012