FEDERAL COURT OF AUSTRALIA

SZTDX v Minister for Immigration and Border Protection [2014] FCA 515

THE COURT ORDERS THAT (PRONOUNCED ON 20 MAY 2014):

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent as agreed or taxed.

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

REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT)

1.    INTRODUCTION

1    This is an appeal from a decision of the Federal Circuit Court of Australia given on 21 February 2014 dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) with costs. The Tribunal affirmed the decision of a delegate of the first respondent (the delegate) refusing the appellant’s application for a protection visa under the Migration Act 1958 (Cth) (the Act).

2    On the appeal, the appellant contends that the Court below erred in finding that the grounds pleaded in the application for judicial review had not been made out.

3    The appellant did not provide any written submissions but confirmed that he had received and read the Minister’s written outline of submissions. The appellant appeared via telephone link at his request as he was located in Griffith and not easily able to make the round trip to Sydney to attend in person. He was assisted by an interpreter in the Punjabi language who was present in the court room.

2.    BACKGROUND

2.1    The appellant’s claims

4    The appellant is a citizen of India. He arrived in Australia on 25 December 2008 on a student visa and has lived in Griffith since December 2008. He applied for a Protection (Class XA) visa on 26 October 2012 after his student visa was cancelled. He claimed to fear harm in India due to his involvement in a fight. He claimed that the fight occurred at a bar with some drunken men who had made inappropriate comments towards his girlfriend. He hit them, they had guns which were alleged to have been pointed at him many times and some shots were fired although there is no evidence to suggest that he or any other person was shot. He claims that the men were the sons of politicians and that the police will not protect him as they are corrupt, that they don’t protect “people like me” and that they along with the men involved in the altercation will kill him.

5    He was interviewed by the delegate where he provided additional information and claims.

6    The delegate refused his application on 4 March 2013.

2.2    The delegate’s decision

7    The appellant applied for review of that decision to the Tribunal under s 65 of the Act.

8    On 10 May 2013 the Tribunal wrote to the appellant inviting him to give evidence and present arguments at a hearing on 17 July 2013. No response was received. Nor was the letter returned to the Tribunal unclaimed. The Tribunal also notified the appellant that if he chose not to appear and in the absence of any adjournment being granted then it would proceed to make its decision on his case without further notification. Consequently, notwithstanding that the appellant did not appear before the Tribunal on the day on which the hearing was scheduled, the Tribunal decided pursuant to s 426A of the Act to make its decision on the review without taking any further action to enable the appellant to appear.

9    In its reasons, the Tribunal observed that it was for an applicant to satisfy it that the statutory elements had been made out and that the Tribunal is not required to make an applicant’s case for him or her. Nor is the Tribunal required to accept uncritically the allegations made by an applicant.

10    The Tribunal found that the appellant had fabricated his claims and was not a credible witness based on the inconsistencies in the history of how his claims came about as relayed in his application, on the one hand, and in his interview with the delegate, on the other hand. It found that those inconsistencies were “not insignificant and form core aspects of the story as originally told.” It also observed that it would have discussed these matters with the appellant at the hearing if he had appeared. The Tribunal concluded at [14] of its reasons:

“The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for a Convention reason. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.”

11    Accordingly the Tribunal concluded that it was not satisfied that the appellant is a person in respect of whom Australia has protection obligations under the Refugees Convention or complementary protection obligations and therefore that neither the criteria in s 36(2)(a) nor s 36(2)(aa) of the Act for the grant of a protection visa were satisfied.

2.3    The decision of the Federal Circuit Court of Australia

12    The Court below held that the appellant had failed to demonstrate jurisdictional error on the part of the Tribunal and accordingly dismissed the application for judicial review. As the grounds of the appeal effectively mirror those in the application for judicial review, save that it is said that the Court below erred in failing to accept those grounds, it is convenient to explain the reasons of the Court below in relation to each ground at the same time as I consider the correctness of those reasons.

3.    CONSIDERATION

3.1    The grounds of appeal

13    The grounds of appeal are as follows:

1.    The Learned Federal Circuit Judge was in error in not determining that the Second Respondent had failed to accord “Procedural Fairness” to the Applicant because of:

1.1    its failure to carry out its role in an Inquisitorial Manner when it should have considered all of the evidence before it rather than making a contrary finding.

1.2    the weight it gave to the claims of the Applicant in his application for a protection visa despite the Applicant providing an honest explanation of these claims.

2.    The Learned Federal Circuit Judge was in error in not determining that the Second Respondent acted in an ‘unreasonable’ manner towards the Applicant when dealing with the Applicant’s claims because of it’s failure to consider the claims in accordance with the UN Convention relating to Status of Refugee.

3.    The Learned Federal Circuit Judge was in error in not determining that the Second Respondent fell into jurisdictional error in failing to request more information regarding the Applicant’s persecution.

14    I gave the appellant an opportunity to expand on each ground of appeal, taking each in turn. The appellant elaborated only upon ground 3.

3.2    Ground 1

15    The first ground alleges a failure to accord procedural fairness. As was the case in the Court below, the appellant was unable to identify any evidence that he considered should have been considered by the Tribunal. Nor did the appellant suggest in the Court below or before me that the Tribunal’s summary of the evidence before it was incorrect or incomplete. In those circumstances, I consider that there was no error in the Court below in finding at [12] that it was not persuaded that the Tribunal had evidence in its possession which it failed to consider.

16    Furthermore, I accept the submissions of the Minister that the Tribunal did in fact accord procedural fairness to the appellant. The appellant was invited to attend a hearing before the Tribunal, as I have explained, in accordance with s 425 of the Act at which he could have made submissions and led evidence in support of his claims, and responded to the Tribunal’s concerns about the truthfulness of his claims. However, in circumstances where he failed to appear notwithstanding the invitation to do so, the Tribunal was entitled to proceed to make a decision on the application for review under s 426A. In this regard, quite apart from s 422B of the Act providing that Division 4 of Part 7 in which ss 425 and 426A appear are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which the Division deals, the common law rules of procedural fairness require only that a person be afforded an opportunity to be heard. They do not require that the person whose interests are liable to be affected take advantage of that opportunity.

17    The second aspect of the first ground concerns the weight attributed by the Tribunal to the evidence before it. However as the Court below found at [15], such matters are solely for the Tribunal and do not raise any arguable case of jurisdictional error on the part of the Tribunal. In short, as the Minister submitted, neither this Court nor the Court below has jurisdiction to undertake its own assessment of the factual merits of the Tribunal’s decision. The jurisdiction of the Federal Circuit Court is limited to a consideration only of the legality of the decision by the Tribunal to refuse to grant the appellant a visa, that is, to a consideration of whether the decision of the Tribunal is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1127 [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, on appeal from the Federal Circuit Court under s 24 of the Federal Court of Australia Act 1976 (Cth), this Court is required to consider whether there is error in the decision of the Court from which the appeal is brought. As such, I am equally constrained from embarking upon a consideration of the merits of the appellant’s claims.

3.3    Ground 2

18    Ground two complains that the Court below erred in failing to find that the decision of the Tribunal was unreasonable and did not accord with the Refugees Convention. However, the appellant did not explain either in the Court below or before me the manner in which the decision was said to be unreasonable, nor any aspects of the appellant’s claims that the Tribunal had failed to consider. Furthermore, as the Court below held at [16], a fair reading of the Tribunal’s decision reveals that it understood the tests which it was required to apply in order to determine the appellant’s claims to be a refugee. Ultimately, however, the appellant’s claims were rejected by the Tribunal because it could not be satisfied of the truth of those claims on the evidence before it. In this regard, I note that the Tribunal had before it all of the material that had been before the delegate, together with the decision of the delegate.

3.4    Ground 3

19    The third ground contends that the Court below fell into error in not determining that the Tribunal erred in failing to request more information regarding the appellant’s persecution. In his oral submissions, the appellant submitted that the Tribunal could have asked him for more information and that he could have provided further information to the Tribunal if he was prompted to do so.

20    The Court below, however, held at [17] that “the Tribunal was not required to invite the [appellant] to provide information or arguments which he had failed to provide on his own initiative… [t]he Tribunal’s obligation to make enquiries is limited to a narrow range of circumstances, none of which were present in this case.” Accordingly, the Court below concluded that the Tribunal was not required to request more information.

21    I can see no error in the reasoning of the Court below in rejecting this ground. As the High Court held in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 (SZIAI), the Tribunal is under no general obligation to make inquiries. As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ emphasised at 1129 [25]:

“The duty imposed upon the [Refugee Review] Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.” (emphasis added)

22    Furthermore, the circumstances in which a failure by the Tribunal to undertake further inquiries that could constitute reviewable error are likely to be “rare or exceptional”: Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at 172 [60] (Kenny J). No particular circumstances said to give rise to such a duty have been alleged here and none was apparent on the material before the Court below.

4.    CONCLUSION

23    For these reasons, I have reached the view that no legal error has been demonstrated in the reasons of the Court below for rejecting any of the appellant’s grounds for review. The appeal should be dismissed with costs.

Associate:

Dated:    20 May 2014