FEDERAL COURT OF AUSTRALIA

SZTGS v Minister for Immigration and Border Protection [2014] FCA 676

THE COURT ORDERS THAT:

1.    Leave to appeal be granted.

2.    Costs be reserved.

THE COURT DIRECTS THAT:

3.    The appeal be listed at a date to be notified.

THE COURT NOTES THAT:

4.    The Court will issue a referral certificate pursuant to r 4.12 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

1        The applicant seeks leave to appeal from a decision of the Federal Circuit Court of Australia (“FCC”) delivered on 19 February 2014: SZTGS v Minister for Immigration and Border Protection [2014] FCCA 468. In that decision, the primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”). The decision to dismiss the application was made pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) and was, therefore, interlocutory in nature: see r 44.12(2) of the FCC Rules. Accordingly, leave to appeal from the decision is required: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

Background

2        The applicant is a male citizen of India, born in 1984. He arrived in Australia holding a business visa in July 2012.

3        The applicant applied for a Protection (Class XA) visa on 26 July 2012. The applicant’s claims were summarised by the primary judge as follows:

The applicant’s claims to fear harm were that although he was not a Muslim, that he had a relationship with a “Muslim girl”, which led to her pregnancy. He claimed the situation “caused riots” and feared for his life. This emanated from the girl’s family and the community, in particular the local Muslim community.

4        A delegate of the first respondent refused to grant the visa on 12 December 2012. The primary judge noted that the applicant was interviewed by the delegate and that the delegate comprehensively rejected the applicant’s factual account as to why he said he feared harm.

RRT decision

5        The applicant applied to the RRT for review of the delegate's decision on 3 January 2013. He did not provide any additional information or make any additional claims to the Tribunal.

6        On 14 June 2013, the RRT wrote to the applicant advising that it had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 16 August 2013. On 13 August 2013, the applicant advised the RRT that he wanted to give oral evidence. However, the applicant did not attend the hearing or contact the RRT to explain his failure to attend at the scheduled time. In those circumstances, the RRT decided to make its decision on the review pursuant to s 426A of the Migration Act 1958 (“the Act”) without taking any further action to enable the applicant to appear before it.

7        The RRT made its decision on 16 August 2013, affirming the decision not to grant the applicant a Protection (Class XA) visa. In essence, the Tribunal concluded that it was “not satisfied, on the evidence before it” that the applicant’s claims were true. The Tribunal listed ten aspects of the applicant’s claim about which the Tribunal was “not satisfied”.

8        The Tribunal member did not explain why she was not satisfied as to the truthfulness of the applicant’s claims. For example, she did not identify any deficiency in the consistency, detail, plausibility or credibility of the applicant’s claims, or any inconsistency with independent country information: cf NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287. Nor did the Tribunal member identify any matter about which she would have wished to satisfy itself, had the applicant appeared at the hearing: cf NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73.

FFC decision

9        By application filed on 13 September 2013 the applicant sought judicial review of the RRT's decision. The application contained the following grounds:

1.    The Tribunal failed to consider an integer of the applicant’s claims, in failing to consider whether or not the applicant in India was at risk of harm from Muslim extremists, and not able to access effective protection. The Tribunal’s decision was fundamentally influenced by not receiving evidence from the applicant at hearing.

2.    The applicants satisfy the key elements of Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

3.    The Tribunal failed to investigate applicant’s claim, specially the grounds of persecution in India. Therefore, the Tribunal dated 19 August 2013 was effected by actual bias constituting judicial error.

10        The applicant did not provide written submissions or any evidence in support of his application.

11        However, the applicant appeared in person at the FFC hearing with the assistance of an interpreter.

12        The matter was set down for hearing pursuant to r 44.12 of the FCC Rules, which required the primary judge to consider whether he was satisfied that the applicant had raised an arguable case for the relief claimed.

13        The primary judge described the grounds for judicial review as “formulaic” (at [9]). He observed that “the applicant did not attend the Tribunal hearing, yet almost all the grounds contained in his application appear to proceed on that basis”.

14        The primary judge noted that, at the hearing, the applicant claimed that the reason he had not attended the RRT hearing was that he had been ill. However, there was nothing to show that the applicant attempted to contact the RRT to advise it of his difficulty or otherwise to seek an adjournment of the hearing. His Honour considered this complaint in detail, and concluded that it did not raise any arguable case for the relief sought by the applicant.

15        As to the first ground of review, the primary judge concluded:

a.    On what was before the RRT, it could not reach the requisite level of satisfaction that the applicant met the relevant criteria for the grant of a protection visa. The primary judge said (at [26]): “[The Tribunal] explained why this was the case. No legal error is revealed in these circumstances. No arguable case is raised for the relief sought”;

b.    There was no evidence that the applicant claimed to fear harm from “Muslim extremists”. At best, the applicant’s claim was that he feared harm from the Muslim community generally;

c.    There was nothing to show that the Tribunal overlooked or misunderstood the applicant’s claims;

d.    It was difficult for the Tribunal to reach the requisite level of satisfaction in circumstances where the applicant did not attend the hearing, and the Tribunal had put the applicant on notice that it could not reach the requisite level of satisfaction on the material before it;

e.    Ground one also appeared to complain that the RRT should not have proceeded to make its decision without receiving evidence from the applicant at a hearing. The circumstances demonstrated that the Tribunal was entitled to proceed pursuant to s 426A of the Act.

16        As to the second ground of review, the primary judge said:

Plainly the Tribunal did consider whether the applicant’s circumstances came within the relevant Refugees Convention definition. On what is before the Court, the ground is no more than an expression of grievance with the Tribunal’s conclusion, and not an assertion of legal error.

17        As to the third ground of review, the primary judge rejected it insofar as it was directed to the Tribunal’s decision to proceed pursuant to s 426A. Insofar as it was directed to some other investigation, his Honour noted that there was no general duty on the Tribunal to make inquiries and there was no obvious inquiry of the kind referred to in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25]. It followed that neither the decision to proceed, nor the failure to make an investigation concerning the applicant’s claim gave rise to arguable claim of bias.

18        Accordingly, the primary judge dismissed the application at the hearing.

Principles governing leave to appeal

19        The principles governing the grant of leave to appeal are well established. Although each case must be considered on its merits, generally an applicant for grant of leave must establish:

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

(b)    that 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, [1991] FCA 655 at [2] (“DÉcor Corporation”); Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564, [2000] FCA 1572 (“Johnson Tiles”) at [44]; Samsung Electronics Co. Ltd v Apple Inc (2011) 217 FCR 238, [2011] FCAFC 156 at [26]–[30].

20        Leave will be more readily granted where an interlocutory decision determines a substantive right, rather than a mere point of procedure: MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1075 at [12], citing DÉcor Corporation at 400 and Eltran Pty Ltd v Westpac Banking Corporation (1988) 32 FCR 195 at 202.

21        In Johnson Tiles, French J said (at [43]):

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).

Is the FCC decision attended by sufficient doubt to warrant reconsideration?

22        The primary judge dismissed the application because he was not satisfied that the application has raised an arguable case for the relief presumably sought.

23        In other contexts, an appeal against a finding of satisfaction as to a matter is subject to the same principles that apply to an appeal from a discretionary decision: see Singer v Berghouse (1994) 181 CLR 201 especially at 210-212; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 especially at [19], [27], [32] and Russo v Aiello (2003) 215 CLR 643 at [27].

24        Applying these principles in this case, the applicant must demonstrate sufficient doubt that, in failing to be satisfied that the application had raised an arguable case for relief, the primary judge:

a.    Acted upon a wrong principle;

b.    Allowed extraneous or irrelevant matters to guide or affect him;

c.    Mistook the facts;

d.    Did not take into account some material consideration; or

e.    Reached a result that is plainly unreasonable or unjust: House v R (1936) 55 CLR 499 at 504-505.

25        The grounds of appeal set out in the applicant’s proposed notice of appeal are:

1.    The [primary judge] failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s 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 [primary judge] failed to consider that the Tribunal had no jurisdiction to make the said decision because its ‘’reasonable satisfaction ‘’was not arrived at in accordance with the requirements of the Migration Act.

26        The grounds of appeal are imprecise and hard to understand. Similar grounds of appeal have been recently considered by the Court in SZSRV v Minister for Immigration and Border Protection [2014] FCA 220 (“SZSRV”), BZAET v Minister for Immigration and Border Protection [2014] FCA 521 and SZRIO v Minister for Immigration and Border Protection [2014] FCA 599.

27        In SZSRV, Flick J identified two possible interpretations of a ground of appeal substantially identical to the first ground of appeal in the applicant’s proposed notice of appeal, being:

a.    That the primary judge erred in rejecting the argument advanced before the FCC; or

b.    An attempt to assert that the claims to “persecution and harm” were not genuinely considered by the RRT.

28        In my view, reading the first ground of appeal in either of the ways identified by Flick J, the following matters raise a sufficient doubt as to the correctness of the primary judge’s decision to warrant a grant of leave to appeal:

a.    The primary judge said that the RRT had explained why it could not reach the requisite level of satisfaction. In my opinion, it is at least arguable that the RRT’s reasons do not contain any or any adequate explanation of that matter;

b.    the RRT’s Decision Record must be understood in the light of the statutory requirements in s 430: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5] (Gleeson CJ); [35] (Gaudron J); [69] (McHugh, Gummow and Hayne JJ) (“Yusuf”). It is at least arguable that the paucity of the RRT’s reasons may indicate a failure on the part of the RRT to have engaged in the “active intellectual process” required to consider a claim: cf NAJT v Minister for Immigration and Multicultural & Indigenous Affairs (2005) 147 FCR 51 at [46] (Hill J) and [212] (Madgwick J). See also Yusuf at [41] and [43], NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470 and Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164.

c.    the grounds of review advanced before the FCC included that the RRT had “failed to consider an integer of the applicant’s claims” and that the Tribunal had not considered the “aspect” that the applicant satisfied “the key elements of Convention definition”. It is arguable that the primary judge construed the grounds advanced in the application too narrowly and, consequently failed to consider a matter sought to be raised by the applicant, namely that there had been a constructive failure by the RRT to exercise its jurisdiction;

d.    as mentioned at paragraph [13] above, the primary judge stated that “the applicant did not attend the Tribunal hearing, yet almost all the grounds contained in his application appear to proceed on that basis”. It is arguable that none of the grounds in the application proceeded upon the false premise that the applicant had attended the Tribunal hearing. Thus, this statement may support a contention that the primary judge misconstrued the grounds of review advanced before the FCC.

Conclusion

29        Accordingly, leave will be granted to appeal from the decision of the FCC.

30        In my opinion, having regard to the nature and complexity of the proceedings, this is a suitable case for referral for legal assistance pursuant to r 4.12 of the Federal Court Rules 2011. Accordingly, I have determined that SZTGS be referred for legal assistance under r 4.12.

Associate:

Dated:    30 June 2014