FEDERAL COURT OF AUSTRALIA

SZRDY v Minister for Immigration and Citizenship [2012] FCA 1230

THE COURT ORDERS THAT:

1.    The Application for Leave to Appeal filed by the applicant on 26 June 2012 be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the Application.

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

REASONS FOR JUDGMENT

1    The applicant applies for leave to appeal from a decision of a Federal Magistrate given on 12 June 2012 (SZRDY v Minister for Immigration and Citizenship [2012] FMCA 507) by which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 17 January 2012. The Tribunal affirmed the decision of a delegate of the first respondent not to grant to the applicant a protection visa.

2    The applicant is a citizen of India who arrived in Australia on 5 October 2010 on a temporary business (Class UC, Subclass 456) visa. On 12 November 2010, he applied to the Department of Immigration and Citizenship for a protection visa.

The Applicant’s Claims

3    In his visa application, the applicant claimed that, in 2000, he was travelling by train in northern India in search of employment. He said that he was intending to go to Delhi. He said that he met a man called Raj Vinayak on the train who offered him a job in Mizoram, which is a province in the north eastern corner of India. The applicant was led to believe by Raj Vinayak that, if he accepted Vinayak’s job offer, he would be working as a forklift driver. The applicant claimed that, when he arrived in Mizoram, he was taken to a Naxalite camp, detained in a dark room there and tortured. He was told by the Naxalites that he should agree to join them otherwise he would be killed. He claimed that, in the face of these threats, he reluctantly joined the Naxalites and participated in Naxalite activities as part of their group.

4    The applicant claimed that he was trained in planting bombs. He said that he was taken on a mission with seven others to bomb Delhi on Independence Day but was stopped just outside Delhi at a military checkpoint. The applicant claimed that, feeling that they would be identified and captured, the group commenced firing on the soldiers. The applicant claimed that he used this opportunity to escape from the Naxalites. He also claimed that he sought help from a stranger who provided him with clothes, money and an opportunity to leave the area by train.

5    The applicant went on to claim that, in February 2001, he again met Raj Vinayak in a place called Kerala, where he was then living. Raj Vinayak demanded that he return to Mizoram. The applicant claimed that, on 18 May 2001, the Naxalites caused a traffic accident in which his wife was killed and in which he was seriously injured. He said that, after he was discharged from hospital, he stayed with his aunt in Madras before leaving for Dubai on 18 November 2001. He remained in Dubai until 9 September 2007. At that time, the applicant returned to India. He claimed that the Naxalites somehow found out about his return to India, necessitating his escape once again to Dubai, an escape which was short-lived when his visa was cancelled. The applicant claimed (and continues to claim) that he cannot return to India because of the Naxalites’ influence throughout India.

6    In oral submissions made to me today, the applicant reinforced his fear of returning to India and repeatedly submitted to me that he felt that his life was in danger should he be compelled to return to India. In the course of making those submissions, the applicant contended that the Naxalites had influence all over the world but especially in India. As I understood the applicant’s submissions, this latter point was being made in order to reinforce his claimed fear of returning to India.

The Tribunal’s Decision

7    As noted by the Federal Magistrate, the Tribunal expressed “serious concerns” about the applicant’s credibility and the plausibility of his claims. In particular, the Tribunal found it implausible that:

(a)    The applicant would abandon his intention to seek employment in Delhi and follow a stranger’s promise of a job in a distant and remote part of India where he knew no-one and had no contacts;

(b)    The Naxalites would forcibly recruit him and then require him to take part in a mission to bomb Delhi, despite the applicant having only a basic understanding of Naxalite ideologies;

(c)    The applicant had made good an escape during the shoot-out with the Indian military;

(d)    A complete stranger would provide the applicant with money, clothing and the capacity to leave the area by train, in circumstances where that person must be taken to have known that the applicant had just escaped from a gunfight with Indian soldiers; and

(e)    The Naxalites would use their resources to track down the applicant in Kerala, particularly in light of the applicant’s own evidence that the Naxalites had not subjected him to persecution subsequently, despite his having stayed for a significant period of time in Kerala.

8    The Tribunal did not accept that the motor vehicle accident in which the applicant’s wife died had occurred for the reasons which he claimed.

9    Despite all of these concerns regarding the applicant’s credibility, the Tribunal found it unnecessary to come to a conclusion as to his credibility because the Tribunal found, amongst other things, that the applicant could reasonably relocate away from Kerala possibly to Delhi or to Calcutta and that, because of the limited presence of the Naxalites in those cities, he would not suffer persecution.

10    In support of that conclusion, the Tribunal noted that the applicant spoke good Hindi, had experience as a forklift operator and had worked abroad. The Tribunal found that there were no serious impediments to the applicant relocating elsewhere in India.

11    The Tribunal also found that there was no real chance that the applicant would face persecution in India for a Convention reason even if he did not relocate.

The Proceeding in the Federal Magistrates Court

12    On 14 February 2012, the applicant commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision. In an Amended Application filed on 10 April 2012, the applicant relied upon the following grounds:

l.     The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per s 91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India. The Tribunal’s failure to satisfy this statutory obligation was a serious jurisdictional [sic] caused by the Tribunal.

2.     The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.

3.     The Tribunal did not give to the applicant before the hearing the independent information that it had about Naxalite movement in India. The Tribunal used this information. This was against section 424A of the Migration Act 1958.

4.     The Tribunal constructively failed to exercise its jurisdiction;

Particulars:

The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.

13    The Federal Magistrate dismissed the applicant’s Application pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). After setting out the applicant’s claims and referring to the Tribunal’s reasons and decision, the Federal Magistrate proceeded (at [22]) to deal with the specific grounds raised by the applicant in the proceeding before him.

14    As far as ground 1 was concerned, the Federal Magistrate found that the applicant’s contention that the Tribunal had failed to consider whether the applicant would suffer serious harm in accordance with s 91R(2)(a) of the Migration Act 1958 (Cth) (the Migration Act), if he were asked to relocate in India, was misconceived. The Federal Magistrate observed that, although the question of relocation had featured somewhat prominently in the Tribunal’s decision and reasons, the Tribunal had nonetheless made clear findings to the effect that there was no real chance that the applicant would face persecution for any Convention reason were he now compelled to return to India.

15    In the course of dealing with ground 1, the Federal Magistrate also commented upon the Tribunal’s approach to the question of making credibility findings in respect of the applicant. The Federal Magistrate noted that the Tribunal had made no adverse credibility findings, despite the fact that it had had a significant number of serious concerns with his version of events.

16    Nonetheless, in the circumstances of the present case, the Federal Magistrate concluded that the approach taken by the Tribunal did not involve jurisdictional error because it had made the appropriate findings as to the likelihood of persecution during the course of its consideration of the matter and that the relocation conclusions expressed by the Tribunal constituted nothing more nor less than “belt and braces” support for the primary conclusion reached by the Tribunal to the effect that there was no real chance that the applicant would face persecution if he were compelled to return to India.

17    As far as ground 2 was concerned, the Federal Magistrate remarked that it was advanced without any particularity. Nonetheless, the Federal Magistrate proceeded to deal with it as best as he could, concluding that it had not been made out.

18    As far as ground 3 was concerned, the Federal Magistrate concluded that the country information referred to in this ground fell within the exception in s 424A(3)(a) of the Migration Act, with the consequence that s 424A(1) was not enlivened.

19    As far as ground 4 was concerned, the Federal Magistrate concluded that appropriate consideration had been given to all of the applicant’s claims by the Tribunal. In particular, the Federal Magistrate concluded that the three documents specifically referred to by the applicant in his submissions to the Federal Magistrates Court had been appropriately considered.

The Applicant’s Application for Leave to Appeal

20    Because the Federal Magistrate summarily dismissed the applicant’s Application in the Federal Magistrates Court, pursuant to r 44.12(1)(a) of that Court’s rules, the applicant requires leave to appeal before he can bring any appeal in this Court. The applicant’s affidavit in support of his current Application contains the following statement:

The Court [referring to the Federal Magistrates Court] failed to consider that the Tribunal decision was an improper exercise of the power conferred by an enactment in pursuance of which it was purported [sic] to be made.

21    The draft Notice of Appeal lodged with the Court contains the following grounds of appeal:

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.

22    Notwithstanding that the applicant was required to file and serve an Outline of Submissions in support of his Application, he has not done so. He appeared before me today with the aid of an interpreter. He made oral submissions to me which I have summarised at [6] above.

23    Those submissions do not address the relevant principles pursuant to which the present Application must be considered. They simply re-state the applicant’s fear of returning to India. In Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [64]–[66], I said:

Leave to Appeal

64    In Samsung Electronics Co Ltd v Apple Inc (2011) 286 ALR 257 at [26]–[30] (pp 266–267), the Full Court said:

26    In this Court, it is well established that the relevant test (or “litmus test”) for whether leave to appeal from an interlocutory judgment will be granted, comprises the following two integers:

(1)     whether, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and

(2)     whether substantial injustice would result if leave were refused supposing the decision to be wrong.

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–400; 104 ALR 621 at 622–4; 23 IPR 1 at 3–5 (Décor).

27    In Bienstein v Bienstein (2003) 195 ALR 225; 30 Fam LR 488; [2003] HCA 7 at [29] (Bienstein), McHugh, Kirby and Callinan JJ said that:

29    … The principles that govern the grant of leave to appeal are well established. An applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave. The applicant must also show that substantial injustice will result from a refusal of leave to appeal.

28    The test for leave to appeal explained by the High Court in Bienstein is the same test as the Full Court had earlier articulated in Décor.

29    As the Full Court itself said in Décor, the test which it described is appropriate for the general run of cases. The test should not, however, be applied as if it were some hard and fast rule. Each case must be considered on its merits.

30    In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564; [2000] FCA 1572, French J (as he then was) (with whom Beaumont and Finkelstein JJ agreed), when dealing with the principles which generally govern the grant of leave to appeal from an interlocutory decision in relation to a matter of practice and procedure, said (at [43]–[44]):

43     Artificial distinctions may be drawn because of the requirement that the Court looks to the legal rather than the practical effect of the order in question—Carr at 248 (Gibbs CJ) 256 (Mason J). But such artificiality as may arise can be overcome by a sensible exercise of the discretion to grant leave informed by the underlying policy of that requirement. Interlocutory orders cover a spectrum from those concerned solely with the mechanics of case management and pretrial preparation to those which may, for one reason or another, have a significant impact upon the scope and outcome of the proceedings. If the order, the subject of the application for leave to appeal, is concerned with the mechanics of the pretrial process then the scales are likely to be weighted against the grant of leave. However if while interlocutory in legal effect it has the practical operation of finally determining the rights of the parties “a prima facie case exists for granting leave to appeal”—Ex parte Bucknell (1936) 56 CLR 221 at 225; [1937] ALR 332 at 334; Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400; 104 ALR 621 at 624; 23 IPR 1 at 5; Minogue v Williams (2000) 60 ALD 366; [2000] FCA 125 at [18]. If a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory. However leave will usually be granted in such a case if there is any doubt about the decision at first instance—Little v Victoria [1998] 4 VR 596 at 598–600 and 601 (Callaway JA, Buchanan JA agreeing).

44     The Full Court in Minogue restated the two tests enunciated in Décor Corporation which have been developed to justify the grant of leave to appeal from an interlocutory order. The first is that the decision at first instance should be attended with sufficient doubt to warrant its reconsideration on appeal. The second is that substantial injustice would result if leave were refused. The present case is one in which the decisions in question have allowed causes of action to go forward which the respondents and other parties say are untenable and should be struck out. It was contended for BHP that, in so far as the decision of 3 March 2000 involves rejection of the contention that the s 52 claim is colourable and that the Court lacks accrued jurisdiction to deal with the common law claim, this was a decision that fully determined the rights of the parties and that leave to appeal was not required in respect of it. The “decisions” referred to however were findings underlying an order, the relevant order being to allow the amendments to the statement of claim.

65    In Ex parte Bucknell (1936) 56 CLR 221 at 223–225, the High Court (Latham CJ and Rich, Dixon, Evatt and McTiernan JJ) considered the principles which should govern the grant of leave to appeal from an interlocutory judgment of a Supreme Court of a State or Territory pursuant to s 35(1) of the Judiciary Act 1903 (Cth). In particular, at 225, the Court said that, to give judgment on demurrer holding one of several pleas to be bad or to give leave to sign summary judgment, may well affect rights of sufficient value to justify leave to appeal. The Court also reinforced the proposition that, when an application for leave to appeal is under consideration, the Court will examine each case and, unless the circumstances are exceptional, it will not grant leave if it forms a clear opinion adverse to the success of the proposed appeal.

66    In the present case, the decision of the Federal Magistrate in respect of which leave to appeal is sought has the practical effect of determining on a final basis the applicant’s claim for judicial review of the Tribunal’s decision given on 21 October 2011. For this reason, it is necessary, in my view, for me to examine closely the applicant’s prospects of success in the appeal, were I to grant leave to appeal as sought.

24    I propose to apply those observations in the present case.

25    It seems to me that the proposed appeal, which will be propounded by the applicant should leave be granted, has no prospects of success.

26    The first ground of appeal relied upon by the applicant in his draft Notice of Appeal appears to be a Wednesbury unreasonableness ground. The applicant seeks to apply the Wednesbury principle to the decision of the Federal Magistrate. That ground is based upon a misconception as to the law. The principle relied upon is a principle relevant to the conduct of administrative decision-makers in the position, for example, of the delegate and the Tribunal in the present case, not to the decisions of judicial officers such as a Federal Magistrate. The task undertaken by the Federal Magistrate was one of judicial review. The Federal Magistrate undertook that task impeccably. Ground 1 has no merit. I reject it.

27    Ground 2 is expressed in an entirely general form and does not raise any particular matter which could conceivably constitute appealable error. I apprehend from the oral submissions made by the applicant that his complaint is that the Tribunal failed to accept the validity of his concerns. This is not a matter with which either the Federal Magistrate or this Court can deal. It goes purely to the merits of the matter. I therefore reject ground 2.

28    For these reasons, the Application will be dismissed with costs. The orders of the Court are:

(1)    That the Application be dismissed.

(2)    That the applicant pay the first respondent’s costs of and incidental to the Application.

Associate:

Dated:    12 November 2012