FEDERAL COURT OF AUSTRALIA

MZZPL v Minister for Immigration and Border Protection and Refugee Review Tribunal [2014] FCA 110

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The Appellant is to pay the First Respondent’s costs to be taxed in default of agreement

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

REASONS FOR JUDGMENT

1    This decision deals with a purported Notice to Appeal from a judgment of the Federal Circuit Court dismissing an application by the Appellant for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). The Tribunal decision had affirmed a decision by a delegate of the Minister not to grant the Appellant a Protection (Class XA ) Visa. The background to the matter before the court can be shortly stated.

2    The Appellant is an Indian citizen and arrived in Australia on 7 June 2006 on a Student (Temporary) (Class TU) Visa. The Appellant’s student visa was valid until 31 August 2009. On 29 September 2009 the Appellant lodged an application for a further stay, which was refused on 28 January 2010 and the associated bridging visa expired on 25 February 2010. The Appellant lodged an application for a Protection (Class XA) Visa on 5 September 2012. The application was refused by a delegate of the Minister on 30 October 2012 on the basis that the delegate was not satisfied the Appellant was a person to whom Australia had protection obligations under s.36 of the Migration Act 1968 (Cth) (the Act). The Appellant lodged an application for review with the Refugee Review Tribunal (the Tribunal) on 14 July 2011.

3    The Appellant appeared before the Tribunal at a hearing on 26 June 2013 to give evidence and present arguments in relation to the review of the delegate’s decision. Before the Tribunal the Appellant claimed to have been a member of Akhil Bharatiya Vidyarthi Parishad (ABVP), the student wing of the BJP, one of the main political parties in India and the dominant party in Gujarat, where the Appellant lived. The Appellant claimed to have been active in the ABVP for two years from around 2003 to 2005. The Appellant was 18 years old in 2003.

4    The Appellant claimed that he left the ABVP after being subject to harassment by members of the National Student Union of India (NSUI), a rival student association linked to the Congress Party. The Appellant described one incident in which he was beaten by members of the NSUI, although he claimed that he was not injured and did not seek medical treatment as a result.

5    The Appellant claimed that after this incident he was advised by his father to quit the ABVP and concentrate on his studies. He did so, writing a statement that he was quitting ABVP for this reason. A week later, the Appellant claimed that he was threatened by people from the NSUI, who came to his home with hockey sticks and told him to join the NSUI.

6    The Appellant claimed that when he went to the NSUI offices to complain about the treatment, a senior person there threatened him that they would continue to harass him unless he joined. The Appellant also claimed that he went to the police and lodged an incident report in relation to the assault, but was told he would have to get a letter from the ABVP about his membership and a letter from the NSUI about the assault.

7    The Appellant claimed that he applied for a student visa to Australia in 2005 and left India in June 2006. He returned to India in early 2007 for 19 days because his father was not well. He had not been back to India since and told the Tribunal that he was scarred by the experience in the past and wanted to live in Australia.

8    On 2 July 2013 the Tribunal affirmed the decision of the delegate not to grant the Appellant a Protection (Class XA) Visa. I return to the Tribunal’s decision later.

9    On 26 July 2013 the Appellant filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court. The grounds set out in the Appellant’s application were:

1.    I applied for the protection visa to department of immigration which was refused.

 2.    Then I apply to RRT for review of that decision.

3.    I think RRT Tribunal and department of immigration did not look my situation.

10    The affidavit filed by the Appellant in support of the application for judicial review simply states:

1.    I come to Australia on STUDENT visa then I has applied for protection visa and RRT. I am not happy with those decisions.

 2.    I enclose here my RRT decision delivered on 02/07/2013 as annexure “A”.

11    The application was listed for a show cause hearing at 2.15pm on 28 October 2013. On 28 October 2013, before the scheduled commencement of the hearing, the Appellant notified the Federal Circuit Court Registry that he would be unable to attend the hearing due to a doctor’s appointment at 1pm that day. He was advised by the Registry that if he failed to attend the hearing or produce medical evidence, the hearing would proceed and orders could be made in his absence. The Appellant did not appear at the hearing and nor did he provide a medical certificate to explain his absence. The Court determined to proceed with the hearing in the absence of the Appellant (pursuant to r 13.03C(1)(e) of the Federal Circuit Court Rules (the FCC Rules)) and to make its decision on the papers without hearing oral submissions (pursuant to rr 15.01(b) and 15.03 of the FCC Rules).

12    The Court dismissed the Appellant’s application on the basis that the Appellant had not raised an arguable case for judicial review and ordered the Appellant to pay the First Respondent’s costs. The Court’s reasons for judgment are set out at pp 90-93 of the Court Book.

13    In its reasons for decision, the Court observed that the only ground of review contained in the application filed by the Appellant was: ‘I think RRT Tribunal and department of immigration did not look at my situation.’ The Court noted that the Appellant appeared before the Tribunal to give evidence and present arguments, and that the Tribunal considered the Appellant’s claims and evidence. The Court found (at [6]-[8]) that, contrary to the Appellant’s contention, the Tribunal in fact ‘looked at’ the Appellant’s situation.

14    The Court found (at [9]-[10]) that the Tribunal correctly stated that the issue in the Appellant’s case was the Appellant’s fear of harm from a rival political group, and that it accurately set out the facts claimed by the Appellant and a summary of the evidence given by the Appellant.

15    The Court noted that the Tribunal did not believe that incidents in 2005 would have any hearing in 2013 and beyond, and observed that the Tribunal was entitled to give such weight to the evidence proffered as it thought appropriate in all the circumstances (citing Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464).

16    The Court also noted that the Tribunal had taken into account the Appellant’s delay in applying for a protection visa, and observed that delay was a serious factor to take into account in assessing the genuineness, or at least the depth, of the Appellant’s alleged fear of persecution (citing Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).

17    32.    The Court observed that the Tribunal set out a lengthy consideration of the details surrounding the ABVP and the NSUI, and did not accept some of the Appellant’s evidence and claims. The Court held that the Tribunal was entitled to reject that evidence and emphasised that the Tribunal’s findings of fact were not amenable to judicial review (citing NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10).”

18    The Court’s conclusion is set out at paragraphs [19] to [23] of the reasons for judgement;

19.    The Tribunal was not satisfied that the applicant has a well-founded fear of persecution now or in the reasonably foreseeable future arising out of his political opinion in India (CB p.78 [46]).

20.    The Tribunal considered the complementary protection provisions in section 36(2)(aa) of the Migration Act 1958 (the ‘Act’) and was not satisfied that the applicant is a person to whom Australia owes protection obligations under section 36(2)(aa) (CB p.78 [49]).

21.    The Court finds that the Tribunal considered in detail the claims put by the applicant.

22.    The ground for judicial review does not raise an arguable case.

23.    The Court dismisses the application pursuant to r.44.12(1)(a) of the Rules.

19    As I have noted, the Federal Circuit Court dismissed the Appellant’s application pursuant to rule 44.12(1)(a) of the FCC Rules. A dismissal of an application under rule 44.12(1)(a) is an interlocutory judgment (see r 44.12(2) FCC Rules; SZLQZ v Minister for Immigration Multicultural Affairs and Citizenship [2008] FCA 717; MZZBU v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 840).

20    As the judgement of the Federal Circuit Court is interlocutory in character leave to appeal is required (s.24(1A) of the Federal Court of Australia Act 1976) and the application for leave to appeal had to be filed within 14 days of the date on which judgment was pronounced or the order made (r 35.13 of the Rules). In determining the issue of leave to appeal the Court must be satisfied that the decision sought to be appealed is attended with sufficient doubt to warrant it being reconsidered on appeal and that substantial injustice would result if leave to appeal were refused (see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399).

21    The judgment and order of the Federal Circuit Court were made on 28 October 2013 and hence the time within which the Appellant was able to file the application for leave to appeal, without extension, expired on 11 November 2013. The purported Notice of Appeal was filed on 18 November 2013.

22    The Appellant has not sought, or obtained, leave to appeal or leave to extend the time to file an application for leave to appeal.

23    The First Respondent contends that the Notice of Appeal filed is incompetent (as no application has been filed for leave to appeal or to extend time) and in the alternative submits that even if the Appellant had sought leave to appeal there would be no basis for the grant of leave in this case.

24    In the circumstances it is appropriate to consider the merits of the proposed appeal. The purported Notice of Appeal contains only one ground of appeal:

The FM failed to find that the tribunal’s decision was in breach of s424A of the Migration Act 1958 (Cth) and therefore all under jurisdictional error.

25    This ground of appeal was not raised before the Federal Circuit Court, and no explanation has been offered as to why it was not pursued earlier. In exercising the discretion to permit new grounds to be raised for the first time on appeal the Full Court of this Court has observed that great care should be exercised in order to avoid turning the Court on appeal into a de facto Court of first instance: see Minister of State for Home Affairs v Siam Polyethylene Co Ltd (No 2) [2010] FCAFC 106 at [20]. It is unnecessary for me to decide whether to permit the Appellant to raise this ground for the first time on appeal as I have concluded that the ground is without merit.

26    Section 424A of the Act provides as follows:

424A Information and invitation given in writing by Tribunal

(1) Subject to subsections (2A) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c) invite the applicant to comment on or respond to it.

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application for review; or

(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c) that is non disclosable information.

27    Section 424AA deals with information given orally by the Tribunal while the Applicant is appearing before the Tribunal, it provides:

424AA Information and invitation given orally by Tribunal while applicant appearing

If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) if the Tribunal does so—the Tribunal must:

(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii) orally invite the applicant to comment on or respond to the information; and

(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

28    The purported Notice of Appeal does not identify the ‘adverse information’ which the Appellant says was used by the Tribunal in contravention of s.424A(1). The Appellant has not sought to identify what ‘adverse information’ he says was used by the Tribunal without complying with s.424A(1). No written submissions were filed by the Appellant. At the hearing the Appellant did not appear and accordingly did not advance any argument in support of the ground of appeal.

29    As the Appellant is self represented and did not attend the hearing, I propose to review the Tribunal’s decision to see if there is any basis for the ground of appeal advanced.

30    The Appellant’s claims before the Tribunal are set out at paragraphs [3] to [7] above. The Tribunal accepted that the Appellant was a member of the ABVP and that he was no longer a member of this organisation (Tribunal’s decision at [38]). The Tribunal also accepted that the single incident of harassment by the NSUI described by the Appellant had occurred. However, the Tribunal did not accept that this was the reason the Appellant left the ABVP. Rather, the Tribunal considered the Appellant’s interest in studying, as specified in his letter of resignation to the ABVP, was the reason he left.

31    The Tribunal did not accept the Appellant’s account of approaching the police in relation to the incident with NSUI or his claims of ongoing harassment by NSUI members once he left the ABVP. The Tribunal concluded that it was not satisfied that any party or organisation with any interest in the Appellant and found that the Appellant was able to continue his ordinary affairs without incident after he left the ABVP.

32    These issues are dealt with at paragraphs [40] to [42] of the Tribunal’s decision:

The Tribunal does not accept the applicant’s explanation of approaching the police and for them to tell the applicant to get letters from the ABVP and NSUI regarding the incident. The Tribunal does not accept as credible the applicant’s claim of the police requiring the applicant to get evidence from the people who he states had assaulted him, as this approach to law enforcement is not logical. To require the injured party to seek evidence from those whom he claims injured him is not a practice that the Tribunal accepts occurs in India.

The Tribunal does not accept the applicant’s claims in relation to ongoing harassment by NSUI members once he had left the ABVP. The Tribunal does not accept that the NSUI would continue to harass the applicant and seek to use force to make him join the NSUI, such as following the applicant with hockey sticks. Such a practice, as discussed with the applicant, would not have the desired effect of gaining members, especially from rival political groups and, as the applicant had advised, that the NSUI was a small group in his area with little influence. The Tribunal does not accept that the ABVP would have no interest in following up reports of intimidation by the NSUI against members of the ABVP. As put to the applicant, the ABVP and the BJP were and remain the dominant political force in Gujurat State, and as such would be in a position to act against any intimidation against its supporters that was reported. The Tribunal does not accept that the applicant was denied assistance by the ABVP. The Tribunal does not accept that the applicant required the assistance of the ABVP because ongoing intimidation against the applicant by the NSUI did not occur.

The Tribunal notes that the applicant remained in his home location for a significant period of time after leaving the ABVP and coming to Australia, including going to school, though the applicant stated he did not do well in his exams. The Tribunal is not satisfied that there was any party or organisation had any interest in the applicant. The Tribunal finds that the applicant was able to continue his ordinary affairs in Baroda after he left the ABVP, without incident.

33    The Tribunal did not accept that the single incident involving the NSUI constituted systematic and discriminatory conduct as defined by s 91R(1)(c) of the Act. This finding and the basis for it are set out at paragraphs [43] to [44] of the Tribunal’s decision:

The Tribunal put to the applicant that he had not been involved in student politics since his resignation in 2005. He returned to India in 2007 without incident. The incident that the Tribunal accepts occurred happened in 2005, it is now 2013 and the applicant has not been present in the location apart from a short period since 2006. The Tribunal put it to the applicant that there was no interest in the applicant in 2013, that there was no interest in harming the applicant arising out of his involvement in the ABVP in 2003 to 2005, that the circumstances have changed in the intervening time period, that the applicant is no longer a student, and that the Tribunal did not believe that incident that occurred in 2005 would have any bearing in 2013 and beyond. The applicant’s response that he is scarred by the incident in 2005, that Australia has a better system than India, and that he wants to remain here, does not satisfy the Tribunal that there is any risk of harm for the applicant in India.

The Tribunal finds that the applicant left the ABVP of his own accord to concentrate on his studies. The Tribunal finds that apart from one incident when the applicant was attached by rival NSUI members, the applicant has not had any other incidents of harassment occur to him for any reason. The Tribunal does not accept that the single incident that the applicant was involved with rival NSUI members constitutes systematic and discriminatory conduct as defined by s.91R(1)(c) of the Migration Act. The Tribunal finds that the applicant does not face any form of harm in 2013 and for the foreseeable future for his involvement in student politics in 2003 to 2005, or because of the one incident that occurred in 2005. The Tribunal finds that the applicant has no fear of harm arising from the current ‘messy’ political system in India.

34    The Tribunal also noted that there had been a significant delay by the Appellant in lodging his protection visa application, and stated that it considered this delay was further evidence of the Appellant’s lack of concern about his circumstances in India.

35    The Tribunal concluded that it was not satisfied the Appellant faced a real risk of significant harm arising out of his involvement in student politics in India between 2003 and 2005 and was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Appellant being removed from Australia to India, there was a real risk that the Appellant would suffer significant harm. Accordingly, the Tribunal concluded (at [48] to [49] of its decision) that it was not satisfied the Appellant was a person to whom Australia had protection obligations under the Refugees Convention or the complementary protection provisions contained in s 36(2)(aa) of the Act. The Tribunal therefore affirmed the decision not to grant the Appellant a Protection (Class XA) visa.

36    An examination of the decision of the Tribunal, does not reveal that there was any information relied on by the Tribunal in reaching its decision that would not have been excluded from the requirements of s.424A(1) by s. 424A(3). In particular, in reaching its decision, the Tribunal appears to have relied exclusively on information supplied by the Appellant and on country information concerning the relationship between the political parties referred to by the Appellant. Both classes of information are exempt from the requirements of s.424A(1) (see s.424A(3)(a) and s.424A(3)(b) and (ba)).

37    Further, s.424A(1) only requires the Tribunal to invite an applicant to comment on information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. That does not include the Tribunal’s subjective appraisals, thought processes or determinations: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9].

38    The Tribunal clearly put to the Applicant all of the information relied on by the Tribunal in coming to the conclusion that it was not satisfied the Appellant had either a real chance of serious harm or a real risk of significant harm on return to India, including that the circumstances had changed since the incidents he described, that the Appellant was no longer a student, and that the Tribunal did not believe that the incident in 2005 would have any bearing in 2013 and beyond. This is apparent from paragraph [27] of the Tribunal’s decision:

The Tribunal put to the applicant that the incidents he was claiming occurred were in 2005, which is now 8 years ago. The Tribunal stated that the circumstances have changed in the intervening time period, that the applicant is no longer a student, and that the Tribunal did not believe that incident that may have occurred in 2005 would have any bearing in 2013 and beyond. The Tribunal advised it had to consider the applicant’s fear of harm now and in the reasonably foreseeable future. The applicant could not say why he would be at risk of harm in India in 2013. The applicant stated that the Indian political system in was messy, while the Australian system was very good. The applicant stated he was scarred by the experience in the past. The applicant stated he just wanted to live in Australia.

39    In those circumstances, it cannot be said that there has been any failure to comply with s.424A(1) of the Act. Accordingly, the Appellant’s purported appeal is without merit. It follows that there will be no injustice visited upon the Appellant if his application for leave to appeal and to extend time were refused.

40    The application is dismissed

41    The First Respondent has sought costs in the proceedings. As a general proposition, costs follow the event and a successful party is entitled to its costs unless special circumstances justify some other order. I am satisfied that the First Respondent is entitled to costs in the proceedings in circumstances where the Appellant’s application has failed and the purported appeal clearly lacked merit.

42    For the above reasons the Appellant’s application is dismissed with costs.

Associate:

Dated:    20 February 2014