FEDERAL COURT OF AUSTRALIA

MZZBU v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 840

THE COURT ORDERS THAT:

1.     The application is dismissed.

2.    The appellant pay the First Respondent’s costs, such costs to be taxed unless agreed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    Judge Burchardt dismissed the appellant’s application for review of the decision of a delegate of the first respondent, the Minister for Immigration, Multicultural Affairs and Citizenship (the First Respondent), that:

1.    the appellant did not meet the criteria for the grant of a protection visa pursuant to s 36(2) of the Migration Act 1958 (Cth) (the Act); and

2.    the appellant was not a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees, as amended by the Protocol Relating to the Status of Refugees (the Refugee Convention).

The application was dismissed pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). The appellant has filed a notice of appeal.

2    The second respondent, the Refugee Review Tribunal (the Tribunal), has filed a Submitting Notice pursuant to r 12.01(1) of the Federal Court Rules 2011 (Cth).

PROCEDURAL HISTORY

3    The appellant is a citizen of India who arrived in Australia on 23 January 2008 on a Class TU Subclass 573 visa. On 29 February 2012, the appellant lodged an application for a Protection (Class XA) visa. On 21 May 2012, a delegate of the First Respondent assessed the appellant as a person to whom Australia did not owe Refugee Convention obligations.

4    On 21 June 2012, the appellant applied to the Tribunal for review of the decision of the First Respondent. On 24 September 2012, the Tribunal found that the appellant did not meet the criteria for a protection visa and recommended that he not be recognised as someone to whom Australia owed Refugee Convention obligations. On 22 October 2012, the appellant sought judicial review of the Tribunal’s decision and, on 15 May 2013, the Federal Circuit Court dismissed the application for review pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

THE PROCESS BEFORE THE TRIBUNAL

5    The appellant sought protection under the Refugee Convention on the following grounds:

1.    he is of Sikh ethnicity;

2.    his father is a Sikh activist who was shot three times by Indian authorities, survived and then notified a local newspaper;

3.    his father escaped to Germany;

4.    his mother and he moved villages and lived as Hindus;

5.    he was found by Indian authorities who tied him to a chair and beat him. The authorities were looking for his father; and

6.    he was further threatened by Indian authorities at his place of employment and then lost his job.

6    On 17 August 2012, the Tribunal wrote to the appellant, by registered post, inviting the appellant to appear at an interview on 19 September 2012. The letter advised the appellant that the Tribunal had considered the material before it and at that stage was unable to make a decision in the appellant’s favour. The letter went on to state that the appellant could appear at the interview and present arguments in support of his application. The appellant did not attend the interview.

7    On 19 September 2012, a Tribunal officer contacted the appellant by mobile telephone enquiring why the appellant had not attended. The appellant advised the Tribunal officer that he did not receive the letter inviting him to attend an interview but that he had received the acknowledgement of receipt of application letter. The appellant confirmed his postal address. The Tribunal officer advised the appellant to lodge written submissions explaining his failure to attend the interview. When the Tribunal made its decision, the appellant had not filed any further material.

8    The Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugee Convention. In particular, the Tribunal found:

1.    the appellant arrived in Australia on 23 January 2008 but did not lodge an application for a protection visa until 27 February 2012;

2.    that the appellant’s claims were not credible and lacked detail;

3.    the appellant failed to attend the interview with the Tribunal; and

4.    the appellant returned to India in 2010 to visit his mother inconsistent with his claims.

Consequently, the Tribunal did not accept that the appellant’s fear of persecution was well-founded.

THE COURT BELOW

9    The appellant filed an application for review in the Federal Magistrates Court (as it then was) on 22 October 2012. The grounds of review before the Federal Magistrate (as he then was) were:

1.    That the [Tribunal] committed jurisdictional error of law coupled with the error of dealing with the issue of the [appellant’s] claim. [The Tribunal] failed to identify the issue and rewrite the [appellant’s] claim and declared it incredible.

2.    [The Tribunal] asked the wrong questions, as to the [appellant] provided limited details regarding the claim. At no point did the [Tribunal] ask for information needed in a specific manner. They simply declared the [appellant’s] application as unsuccessful.

3.    [The Tribunal] has gone beyond its point of determination and has instead reproduced the [appellant’s] claim with no reasons given as to the [appellants] and the claim of the [appellant] was altogether disregarded and issues raised by the [appellant] was never looked into or properly evaluated.

4.    Further, the [appellant] never received any communication from the [Tribunal] but the decision letter.

5.    In the delegate’s decision, the officer noted the [appellant’s] visit to India, and found it to be inconsistent; the delegate committed an error by identifying the wrong issue. The [appellant] had to go to India as part of cultural obligations to visit his sick mother.

6.    Further, the [Tribunal] acknowledges that even if it is satisfied with the [appellant’s] claim, it failed to satisfy the Tribunal of reason of persecution. This demonstrate an error of law by asking the wrong issue, [the] Tribunal finds the [appellant’s] claim in reason but failed to identify the reasons associated with persecution.

7.    [The Tribunal] acknowledges the mistreatment of the [appellant] at paragraph 34, yet failed to consider this in light of essential reasons and any other convention reasons.

8.    [The Tribunal] acknowledges the ill treatment faced by the [appellant] yet did not consider it to be under convention reasons.

9.    The [appellant] was contacted by the [Tribunal] regarding the interview and the [appellant] advised [the Tribunal] that he has not received any letter, yet [the Tribunal] did not send another letter of interview which the [appellant] was in [the] belief will be sent by the [Tribunal].

10    On 5 December 2013, a Registrar of the Court “set the matter down for a show cause hearing pursuant to r 44.12 of the Federal Magistrates Court Rules 2001 (Cth)” (now the Federal Circuit Court Rules 2001 (Cth).

11    Rule 44.12 provides:

(1)    At a hearing of an application for an order to show cause, the Court may:

(a)    if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; or

(b)    if it is satisfied that the application has raised an arguable case for the relief claimed – adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

(c)    without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

(2)    To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

12    The Federal Circuit Judge made the following observations in relation to the grounds of appeal:

[2]    The application … sets out nine paragraphs as grounds of application. Some of the grounds are relatively formulaic and simply assert jurisdictional error without, in my view, identifying what the error was.

[3]    Ground 4 notes that “the [appellant] never received any communication from the [Tribunal] but the decision letter.”

[4]    The grounds also assert errors on the part of the Tribunal which are in part misconceived (see ground 7 which misrepresents the finding of the Tribunal at paragraph 34 of the Tribunal’s decision) or plainly constitute merits review.

13    The Federal Circuit Judge addressed the application and submissions and dismissed the application pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

14    At the hearing before the Federal Circuit Court on 27 February 2013, the appellant relied on a written submission filed on 8 February 2013. Judge Burchardt found that almost all the first page of the submission was a word-for-word recitation of the grounds in the originating application. His Honour noted that the submission referred to s 420 of the Act and asserted that the Tribunal failed to act according to substantial justice and the merits of the case. The written submission also asserted Wednesbury unreasonableness, that the Tribunal’s decision was an absurd or irrational one and that the Tribunal had failed to accord him natural justice. The written submission also contained some generalised references to the law which his Honour found did not take the matter any further. The Judge then dealt with the specific grounds separately.

Alleged denial of natural justice – Grounds 4, 9

15    Judge Burchardt rejected this argument. His Honour found that, on 17 August 2012, the Tribunal had written to the appellant inviting him to appear to give evidence and present arguments on 19 September 2012. The letter was sent by registered post to the address that the appellant had nominated. His Honour found, on the basis of an affidavit of Katherine Whittemore filed on 28 November 2012, that it was beyond doubt that the letter was indeed posted by registered post to the appellant at his nominated address on the asserted date. In those circumstances, his Honour found the First Respondent’s submission that ss 425 and 425A of the Act have been properly complied with was “irresistible”. His Honour found that the correspondence was deemed to be received within seven days pursuant to s 441C of the Act and that the hearing was still some month and two days away at the time the letter was sent. Accordingly, his Honour found that there was “simply nothing in the [appellant’s] natural justice argument”.

16    Judge Burchardt noted that the Tribunal had correctly set out the history of non-attendance by the appellant at [26] to [28] of its decision and agreed that the Tribunal was empowered by s 426A to proceed to make its decision on the review without taking any further action to enable the appellant to appear before it. But, of course, that was not the end of the matter. As his Honour observed, the Tribunal had caused the appellant to be telephoned on 19 September 2012 to find out why he had not attended the hearing. The record made by the relevant officer included:

Checked his current postal address, which was correct and explained that he must send Tribunal a written submission explaining why he did not appear for hearing and why the Tribunal should list another hearing for him. He said he would do that today.

As his Honour noted, the appellant did not in fact submit anything on that day or before the Tribunal’s decision notification on 24 September 2012.

Alleged “merits review matters” – Grounds 1, 3 7 and 8

17    His Honour found that the criticisms made by the appellant of the Tribunal’s decision were not sustainable. The Tribunal set out the details of the application and then dealt with the relevant law in terms that were entirely appropriate. His Honour noted that the Tribunal went on to set out all the relevant details of the appellant’s application including those matters that he claimed grounded his fear of persecution in their entirety. The Tribunal recorded the delegate’s decision and the matters arising from the Tribunal’s hearing and the appellant’s non-attendance and went on to consider the appellant’s claims. His Honour found that the Tribunal pointed out correctly that it had been denied an opportunity to test the appellant’s claims because of his non-attendance at the hearing and correctly recorded the appellant’s claims as “to be essentially that he fears harm on the basis of his Sikh religion and ethnicity and/or his relationship to his father”.

18    His Honour observed that the Tribunal went on to dismiss the claim and also considered whether the appellant met the complementary protection criterion under s 36(2)(aa), and for the reasons given in relation to the primary claim concluded that he did not. His Honour found, in those circumstances, the Tribunal’s decision was “well and truly open to if”. His Honour also held that the suggestion that the Tribunal’s decision was irrational and that the decision was affected by Wednesbury unreasonableness could not be sustained “for a moment”.

Tribunal allegedly failed to ask for information required in a specific manner – Ground 2

19    His Honour addressed the matters raised in the appellant’s submissions: see [39], [40] and [42]. He found the assertion that the Tribunal failed to ask for information required in a specific manner was misconceived. His Honour noted that the Tribunal invited the appellant to appear and notified him that he needed to do so because it could not be satisfied on the materials before it. Judge Burchardt found that this involved no failure on the part of the Tribunal.

Trip to India – Ground 5

20    Judge Burchardt considered the appellant’s criticism of the delegate’s conclusion about the appellant’s visit to India: see [41]. His Honour found that, not only was the delegate’s decision entirely open, but that the Tribunal did not rely upon this finding in its conclusions in any event.

Wrong Question – Grounds 2 and 6

21    His Honour found that the appellant’s assertion that the Tribunal had asked itself the wrong question was not made out.

Another interview letter? – Ground 9

22    His Honour rejected the appellant’s assertion that the Tribunal failed to send “another letter of interview which the [appellant] was in belief will be sent by Tribunal” as that assertion was directly contrary to the file note dated 19 September 2012: see [16] above.

Conclusion

23    For those reasons, the Judge dismissed the application under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth): see [11] above.

APPLICATION TO THIS COURT

24    A Notice of Appeal was filed in this Court on 30 May 2013. The appeal grounds, in part, were substantially similar to those before the Federal Circuit Judge namely that:

… the decision under appeal suffers from legal errors, and the decision made by the learned Federal Circuit Court is liable to dismissed, and matter of legal jurisdiction was in was not answered, rather the matter in the instant case was dealt on the submissions of the [appellant], moreover, the learned Court below discussed the decision made by the [Tribunal]. This raises the question of jurisdictional error as this was never addressed. That it is pertinent to note that the [appellant] never received any letter from the [Tribunal] for interview.

…

1.    [The Tribunal] has erred in their decision, as given on 24/09/2012. As the [appellants] matter was not dealt in accordance with the principles of the natural justice, the learned member of the [Tribunal] himself confessed that the [appellant] has suffered the harassments, and his many of close relations were killed during the Sikhs uprisings in India, and the [appellant] is undergoing the stress and the persecutions by the hands of the authorities back in India. Although it was not written in black and white, but various decisions of the [Tribunal] has mentioned this in their decisions.

2.    The [Tribunal] has not given the country information regarding the Sikhs genocide which took place in the mid-eighties, this fact is evident from the facts and figures given by the US information department.

3.    Furthermore, decisions lakes (sic) in its spirit and letter as the Khalistan movement has not finished as yet, and the police and the other intelligences are cracking down on the families of those, who are still involved in the movement of the Khalistan, in this regard it is submitted that the [appellants] families back in Punjab India are still undergoing lot of interrogations and the secret police investigations. There are the examples that the family members of the Sikhs activities are facing the persecuting of the acts of the Indian authorities.

4.    [The Tribunal] also access to all the necessary information’s regarding the killings and the genocides of the Sikhs in India, the [Tribunal] has also the latest information’s regarding the recent killings of the Sikhs youths and the extra-judicial killings in the state of the Punjab. The [Tribunal] did not refer to any of the information’s in the statement of the decision given on 01/05/2012 in the instant matter.

5.    In the recent times the Amnesty International also quoted many stories regarding the state killings of the Sikhs in India, moreover there are so many reports given in human rights commission regarding the amount of the persecution and the killings of the Sikhs, it is submitted that many reports which appears in the international reports are not quoted in the matters of the Sikhs uprisings, it appears that the various governments are only hesitant to quote the Indian persecution, and do not quote them, because according to them the India is a secular Country, but in fact it is not so. Although the constitution looks to be secular, but in the practical it is a theoretic state. It is respectfully submitted that the [Tribunal] has beyond its jurisdiction and has committed an error of law as to why the [appellant] was pi (sic) point by some other claim, to which the [appellant] has no information, but this very finding of the [Tribunal] has resulted in a grave miscarriage of justice, putting the [appellant] in the shoes of some other refugee claimant.

6.    May the case was same; [The Tribunal] is under legal obligation to ask the information from the [appellant], regarding the above set finding. This means that the [Tribunal] has gone into statement and claims of some other applicant. The [appellant] is not concerned with claims of others.

7.    It is widely understood that All India Sikh student federation is banned by the Indian authorities like many other Sikh organisation, information regarding ASIIF is available on the Khalistan movement website. Moreover, the [appellant] party in known nationalist Party.

8.    That the question of natural justice, has to excised in many administrative matters, especially in these matters, the [appellant] although agitated the matter, but this was brushed aside, in fact it is the duty of the [Tribunal] to exercise the natural justice all by themselves without the request of the applicant/appellant. The [Tribunal] only relies very heavily on the decisions of the [Tribunal].

25    The First Respondent filed a Notice of objection to competency on 11 June 2013 in the following terms:

…

2.    The Judge dismissed an application filed on 22 October 2012 pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”). A dismissal of an application under rule 44.12(1)(a) is interlocutory: rule 44.12(2) of the Rules; SZLRL v Minister for Immigration and Citizenship [2008] FCA 716; SZLQZ v Minister for Immigration and Citizenship [2008] FCA 717.

3.    As the orders and judgment of the Federal Circuit Court are interlocutory, the appellant requires but has not sought or been granted leave to appeal or an extension of time within which to file the appeal against the judgment pursuant to section 24(1A) of the Federal Court of Australia Act 1976.

The First Respondent applies for the question of competency to be heard and determined before the hearing of the application.

Notice of objection to competency

26    As the First Respondent submitted, the appellant’s notice of appeal is incompetent. The orders and judgment of the Federal Circuit Court are interlocutory: see r 44.12(2) of the Federal Circuit Court Rules 2001 (Cth) at [11] above. The appellant required, but did not seek leave, or been granted leave to appeal or an extension of time within which to file the appeal against the judgment pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

27    The interlocutory judgment of Judge Burchardt was pronounced on 15 May 2013. Any application for leave to appeal had to be filed within 14 days from the date on which the judgment was pronounced (namely, by 29 May 2013): r 35.13(a) of the Federal Court Rules 2011 (Cth). The appellant’s purported notice of appeal was not filed until 30 May 2013. It was a day late.

Leave to Appeal?

28    Notwithstanding the appeal is incompetent, it is appropriate to address the considerations for granting leave to appeal and the contents of the purported notice of appeal. As these reasons for judgment will demonstrate, even if the appellant had sought leave to appeal, leave to appeal would not have been granted.

29    The discretionary power to grant leave to appeal from an interlocutory decision is not a power “automatically” exercised. Section 24(1A) of the Federal Court of Australia Act confers on the court “an unfettered discretion” in “unqualified terms”: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399.

30    For the Court to grant leave to appeal, an applicant must satisfy the Court of the cumulative test set out in Decor Corporation namely:

1.    whether, in all the circumstances, the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and

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

These considerations are not unrelated: Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [20]. If the proposed appeal is doomed to fail, or if no arguable ground of appeal is raised by the applicant, then leave to appeal should not be granted.

31    It is against that background that it is necessary to consider the appellant’s purported notice of appeal: see [24] above. As will be apparent, the purported notice of appeal cannot succeed.

32    First, its content. The purported notice of appeal contains a lengthy list of purported appeal grounds. The grounds are, to a large extent, a repetition of the grounds raised before the primary Judge and invite the Court to undertake impermissible merits review. As counsel for the First Respondent submitted, the appellant is not permitted to rerun the case he ran before the primary judge. The other “appeal grounds” were not raised before the Federal Circuit Court and, in at least one respect, appear to relate to another matter. Contrary to statute and established principle, the appellant would seek to turn the Federal Court’s appellate jurisdiction into a primary court. What the appellant seeks is merits review of the Tribunal’s fact finding function: Pt 8 of the Act and Abebe v Minister of State for Immigration and Multicultural Affairs (1997) 49 ALD 603 at 604 and SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43 at [12]. That is not the role of this Court.

33    Second, the purported grounds of appeal are completely devoid of merit. No particulars, or at least no sufficient particulars, of the complaints are provided to make the appeal grounds meaningful. None of the grounds can succeed.

34    Third, and no less significantly, no attempt was made by the appellant to identify appealable error in the reasons for judgment of Judge Burchardt. The appellant has not identified any basis to suggest that the Federal Circuit Court Judge erred in the exercise of discretion to dismiss the application as failing to disclose an arguable case for the relief claimed, and none is apparent. It is not enough that an appellate court would have exercised the discretion differently in a particular case: Applicant M171/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 220 at [25]. In any event, in the present case, there is nothing to suggest that this Court would have exercised the discretion differently. The matters considered by the Judge in the exercise of his discretion (see [14]-[22] above) were all relevant matters to the exercise of discretion under r 44.12(1)(a) and it has not been suggested otherwise. There was no error in the Federal Circuit Judge finding that the Tribunal’s inability to be satisfied was open to it in circumstances where the applicant failed to attend the hearing. In all the circumstances, the judgment of the primary judge is not attended by any doubt, let alone sufficient doubt, to warrant it being reconsidered by the Full Court. For those reasons, the proposed appeal grounds have no prospect of success and the applicant would not satisfy the requirements for leave set out in Decor Corporation.

Conclusion

35    The application is dismissed. The applicant is to pay the First Respondent’s costs, such costs to be taxed unless agreed.

Associate:

Dated:    19 August 2013