FEDERAL COURT OF AUSTRALIA

SZQNI v Minister for Immigration and Citizenship [2012] FCA 121

THE COURT ORDERS THAT:

The appeal be dismissed with costs to be paid by the appellant’s litigation guardian.

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

REASONS FOR JUDGMENT

1    The appellant appeals from a decision of Lloyd-Jones FM delivered on 25 November 2011 by which his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (“Tribunal”). The appellant is a citizen of India who was born in Australia on 17 March 2010. On 24 August 2010 an application for a Protection (Class XA) Visa was lodged on the appellant’s behalf with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 18 January 2011. The Tribunal subsequently affirmed the delegate’s decision.

Background

2    The appellant is an infant, and is represented by her mother who was appointed as her litigation guardian. The appellant’s parents had previously lodged their own joint protection visa application in 2008. The decision to refuse their application was the subject of an appeal which was ultimately dealt with by a Full Court of the Federal Court. That appeal was dismissed on 13 November 2009. The subsequent application for special leave to the High Court was also dismissed 20 April 2010. The appellant’s parents also applied for Ministerial intervention without success.

3    In the current application process the appellant’s parents made claims on the appellant’s behalf. The appellant’s parents claimed the appellant would suffer harm due to her caste, religion and activities. The appellant’s parents are Christians from Kerala in Southern India. The appellant’s parents did not believe the authorities would protect the appellant.

4    The appellant’s parents identify themselves as belonging to a caste called the “Other Backward Community”. The appellant’s parents claimed that members of their caste were the subject of discrimination. They claimed that family members had been killed due to religious tension. The appellant’s mother claimed she had been involved in community work for the Church and had experienced stone-throwing attacks as a result. The appellant’s father claimed he had been attacked in 2008 and injured.

5    The appellant’s parents indicated that they could return to India but they were concerned for the safety of the appellant.

The Refugee Review Tribunal

6    The appellant’s mother provided a detailed statement in support of the appellant’s protection visa, to which the Tribunal referred in detail in its decision. On 4 November 2010 the appellant’s mother attended an interview with the Tribunal

7    Both parents of the appellant gave evidence on behalf of the appellant at the Tribunal hearing.

8    At the hearing, the Tribunal noted that the appellant’s mother made certain claims which were not included in the her own protection visa application. The Tribunal also noted that the appellant’s mother had provided a doctor’s certificate, relating to injuries allegedly received by the appellant’s father in 2008 and dated 15 March 2011 which was some time after the alleged event. The Tribunal concluded that this delay adversely affected the veracity of the certificate.

9    In relation to the fact that the appellant’s parents derived from Kerala in India and would return there if the appellant’s visa application was unsuccessful, the Tribunal considered independent country information to the effect that there are millions of Christians in Kerala and that they make up 19% of the population of that State. The Tribunal noted that the appellant’s mother had only sought protection once at a local level in India, and noted further that there was no country information to indicate that police protection was not available or was withheld.

10    The Tribunal noted that there had been some delay in the departure of the appellant’s parents in leaving India after alleged attacks, and that this delay was contrary to any fear of persecution. The Tribunal also took into account evidence that the appellant’s mother had returned to India five days after arriving in Australia. The Tribunal also concluded there were significant inconsistencies in the chronology of the claims of the appellant’s mother.

11    The Tribunal did not accept that the appellant’s parents were credible witnesses. The Tribunal accepted that the appellant’s mother was a Christian but they did not accept the appellant’s mother had been involved in conversion work. The Tribunal did not accept the appellant’s mother would face persecution if returned to India. The appellant’s mother stated she did not have any claim based on caste and as such the Tribunal did not deal with this. On this basis the appellant would not face persecution because of her relationship to her mother.

12    As I have already noted, the Tribunal refused the appellant’s application for a protection visa.

Application to the Federal Magistrates Court

13    On 11 August 2011 the appellant’s parents applied to the Federal Magistrates Court on the appellant’s behalf for judicial review of the decision of the Tribunal. That application contained the following grounds of review:

1.    RRT committed serious jurisdictional error.

2.    To seek better outcome from the Court.

3.    The decision makes studied the story with preoccupied decisions.

4.    The Tribunal shows doubt about the credibility of the incident, It is serious jurisdictional error.

5.    In accordance with the section 424A of the Act, RRT says that there is inconsistencies in our evidence.

6.    This statement is wrong, because, we have given relevant evidences to support our story.

7.    Mistakes in the dated in the oral evidences she could not remember the date properly because she was in a strong stress.

14    The Federal Magistrate observed that the appellant is an infant child who has never been outside Australia, and who relied entirely on the experiences of her parents to make claims for protection. In summary, his Honour found that the Tribunal acted in accordance with its obligations under s 414 of the Migration Act 1958 (Cth). The Federal Magistrate found further that the matters raised by the appellant in her application were in the nature of a merits review, and did not identify any jurisdictional error. To the extent that the appellant, in ground 4, claimed bias by the Tribunal, this claim was unsubstantiated. His Honour observed that he had independently viewed the contents of the Court Book and the Tribunal’s decision, and that it was not apparent on the face of those documents that any jurisdictional error was contained within the reasoning of the Tribunal.

15    Accordingly, his Honour dismissed the application with costs.

Application to this Court

16    On 9 December 2011 the appellant’s mother filed a notice of appeal on the appellant’s behalf. That appeal contained the following grounds:

1.    The Federal Magistrate affirm the Department Decision.

2.    The Federal Magistrate failed to find the reality.

Consideration

17    In Court this morning I appointed the appellant’s mother as the appellant’s litigation guardian pursuant to r 9.63(1) of the Federal Court Rules.

18    The appellant’s mother filed written submissions, and this morning in Court handed up supplementary written submissions.

19    In those submissions the appellant’s mother reagitated the facts claimed by the appellant in respect of the family’s Christian beliefs and evangelical activities of the appellant’s mother. Further, the appellant’s mother attacked the decision of the Tribunal on the basis of:

    actual bias on the part of the Tribunal, in the sense that the Tribunal allegedly approached the appellant’s case with pre-conceived ideas;

    a failure of the Tribunal to give the appellant’s parents a proper hearing, in the sense of giving the appellant’s father a mere ten minute hearing and failure to examine his evidence;

    failure of the Tribunal to accept the evidence of the appellant’s parents.

20    An allegation of bias is a very serious matter and must be specifically pleaded. It is not pleaded in this case: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69].

21    I am not persuaded that the Tribunal member demonstrated bias in respect of her decision. While the Tribunal did not accept the appellant’s parents as credible witnesses in this proceeding, it did so for extensive reasons set out at [105] of its decision. A finding as to credit is a finding for the Tribunal: McHugh J in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423. The extensive reasons provided by the Tribunal demonstrate the considered approach of the Tribunal in respect of the claims of the appellant’s parents. I am not persuaded that the Tribunal was biased or approached the case with preconceptions.

22    A failure of the Tribunal to believe the appellant’s parents does not equate to bias on the part of the Tribunal. Indeed, a finding against the appellant on the facts, or ascribing weight to the evidence which is not in the appellant’s favour, is is a legitimate exercise in decision-making by the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

23    In relation to evidence of the appellant’s father, the Tribunal clearly took into account medical evidence provided, but at [105] did not accept that any injuries suffered by the appellant’s father was motivated by religion. The weight given to such evidence is, again, a question for the Tribunal.

24    At [29]-[33] of the Federal Magistrate’s decision his Honour considered the appellant’s claims of bias. I can identify no error in the statement of principles of his Honour, or his conclusion that the claims of bias and complaints of unfairness in this case appear to reflect disappointment with the outcome of the Tribunal proceedings.

25    In relation to the appellant’s grounds of appeal, I note that they are not particularised. The first ground of appeal is a statement of fact reflecting the decision of his Honour below. No basis for overturning the decision of the Federal Magistrate can be identified in this ground of appeal.

26    In relation to the second ground of appeal, it is difficult to identify its meaning. The Minister has made detailed submissions in respect of this ground of appeal, in the event that it should be construed as an allegation that the Federal Magistrate’s findings were somehow affected by legal error. In my view, the second ground of appeal actually seeks a merits review of the decision of the Tribunal, which is not a course open to this Court: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. The Tribunal is the ultimate finder of fact in cases of this nature. In the absence of jurisdictional error, those factual findings are conclusive.

27    I am unable to identify any appellable error in the decision of the Federal Magistrates Court. The appeal is dismissed with costs to be paid by the appellant’s litigation guardian.

Associate:

Dated:    22 February 2012