FEDERAL COURT OF AUSTRALIA

SZTVA v Minister for Immigration and Border Protection [2014] FCA 1334

THE COURT ORDERS THAT:

1.    Grant leave to the applicant to appeal.

2.    Appeal allowed.

3.    The first respondent pay the applicant’s costs in the Federal Court of Australia as taxed or agreed.

4.    Set aside the orders made by the Federal Circuit Court on 29 May 2014 and in lieu thereof:

(1)    Order absolute in the first instance for a writ of certiorari to quash the decision of the second respondent made on 8 January 2014.

(2)    Order absolute in the first instance for a writ of mandamus directed to the second respondent to determine the applicant’s application for review according to law.

(3)    The first respondent to pay the applicant’s costs in the Federal Circuit Court.

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

REASONS FOR JUDGMENT

1    The applicant applied to the Minister for Immigration and Border Protection (‘the Minister’) for a protection visa. He is an Indian citizen of Gurkha ethnicity. As a younger man he had been involved in the violent unrest in the 1980s which related to attempts to establish a Gurkha homeland in and around Darjeeling. Darjeeling is in the northern region of West Bengal which is one of the states of India that shares a border with Nepal. His claims for protection were rejected by the Minister’s delegate and the applicant sought a review of this conclusion before the Refugee Review Tribunal (‘the Tribunal’). The Tribunal accepted the applicant’s claims to have been involved in violent events in the 1980s relating to the homeland issue. However, it reasoned that this was all a rather long time ago and that the passage of time meant that, notwithstanding his political profile, he would suffer no substantial risk of persecution for his prior political activities were he now to be returned to India. The applicant then unsuccessfully sought judicial review of this decision in the Federal Circuit Court. It is from that Court’s summary dismissal of his case that he now applies for leave to appeal to this Court.

2    At the hearing before the Tribunal the member explored with the applicant why he was concerned about being returned to India in 2014. The transcript of the Tribunal hearing shows that the member had in mind the proposition that if the applicant were returned to India no harm would befall him. At the hearing the applicant supplied the Tribunal with two newspaper articles which, on one reading, tended to show that the issues surrounding the establishment of the Gurkha homeland had recently flared up again in West Bengal. It was possible to read these articles differently too: they might only show that the internal political arrangements of the Gurkhaland movement had once again stirred back into life. The relevance of this resurgence of political activity in West Bengal on the Gurkha homeland issue was that it meant that the applicant’s involvement in the earlier events of the 1980s might well have had renewed contemporary relevance.

3    The issue of the re-inflammation of unrest also appears to have been raised by the applicant with the delegate. For example, the delegate’s reasons record:

‘…The applicant stated that 15 years ago there was no Gorkhaland movement because it had been inactive since the establishment of the Darjeeling Gorkha Hill Council in 1988 and that the Gorkhaland movement had only recently resurfaced, adding that the movement re-emergence would renew old hostilities between Communists and Ghorkaland [sic] supporters.

…

In his written claims the applicant indicated that his participation in the Gorkhaland movement between 1986-88 brought him into conflict with Communists from the Darjeeling area and that returning to Darjeeling would place his life in danger as the Gorkhaland movement has re-emerged. The applicant claims that this new Gorkhaland movement will open old wounds and that former Communists would attempt to kill him or harm him if he returned to Darjeeling.’

4    In the section of its decision headed ‘Claims and Evidence’ the Tribunal noted that the applicant ‘provided articles on the Gurkhaland Movement’ at the Tribunal hearing. It did not, however, refer any further to the contents of the articles and it did not refer to the articles in the section of its reasons headed ‘Findings and Reasons’. The Tribunal also referred in the ‘Claims and Evidence’ section to a submission the applicant made after the hearing: ‘The applicant provided a post-hearing submission…addressing issues raised at the hearing’. The post-hearing submission did not itself refer to the two newspaper articles at all.

5    After accepting that the applicant had been part of the Gurkhaland movement in the 1980s and involved in clashes with Communists, the Tribunal went on to make the following findings:

‘38.    The Tribunal does not accept that there are persons who wish to take revenge on the applicant by reason of his actions with the Gurkhaland Movement in 1987-1988 and that they will locate the applicant wherever he is in India. The Tribunal notes that the applicant remained in India for a further ten years after his involvement with the Gurkhaland Movement and no harm befell him or his parents who have remained in Darjeeling.

39.    The Tribunal notes that the applicant continued to live in Darjeeling until 1993 and then resided in Calcutta, where he worked and studied, for the five years preceding his arrival in Australia. The applicant has not recounted any accounts of harm to him during these ten years and as such the Tribunal finds it to be a remote possibility that he would face harm such as attempts to kill him or abduct him on his return to India now or in the reasonably foreseeable future.’

6    I was initially concerned, when considering the matter after the first hearing on 25 August 2014, that the applicant might have been denied procedural fairness because the issue of whether he faced a present problem if returned to India had not been raised with him. Upon the resumed hearing, however, I was persuaded that this could not be so. The issue of whether he faced a present risk if returned to Darjeeling was directly raised with the applicant and it was he who placed the two articles before the Tribunal. There can have been no denial of procedural fairness on that account.

7    However, I do not read the Tribunal’s passing reference to the articles or the post-hearing submission as being sufficient to show that it considered the contents of the two articles or, more generally, the issue of whether the Gurkha homeland issue had once more flared up in contemporary West Bengal. Further, the Tribunal did not deal with the submission expressly made in the post-hearing submission pointing to harm which had befallen people in Darjeeling in more recent times.

8    The most likely inference, and the one I draw, is that the Tribunal overlooked dealing with this significant submission. The single sentence references to the articles and the post-hearing submission are not sufficient to overcome this problem. I conclude that the Tribunal did not deal with the general submission that the articles were advanced to support, namely that the Gorkhaland movement had recently resurfaced, which could mean that the applicant would be at risk of harm if returned.

9    The question then is whether this matters. I think it does. There was either a denial of procedural fairness constituted by failing to deal with the applicant’s substantial argument that he faced a present risk because the political situation in West Bengal had recently heated up: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 326 [24], 338 [86] and 340 [95] (HC). Alternatively, there was a failure adequately to form the state of satisfaction required by s 36(2)(a) of the Migration Act 1958 (Cth): Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547 at 561-562 [46]-[50] (FC).

10    The applicant also raised an argument that the Department had accidentally released his personal details on the World Wide Web. This may well generate a ‘sur place’ claim: cf. SZSSJ v Minister for Immigration and Border Protection [2014] FCAFC 143. However, in the applicant’s case this occurred after the Tribunal hearing and I do not see that it can assist him in establishing that the Tribunal’s decision should be set aside on this account.

11    The Court below dismissed the matter on a summary basis pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) and leave to appeal is therefore required. Leave is also required to extend the time for the bringing of that application. I would grant both and allow the appeal with costs. The question then is what the Federal Circuit Court should have done with the matter. Rule 44.12(1)(c) permits that Court to grant relief at a show cause hearing. That course is the appropriate one to take in this case.

12    I record the Court’s appreciation of the submissions of counsel for the Minister, Mr Kay-Hoyle, for his careful and fair elucidation of what had occurred before the Tribunal. He was a credit to the profession.

13    I make the following orders:

1.    Grant leave to the applicant to appeal.

2.    Appeal allowed.

3.    The first respondent pay the applicant’s costs in the Federal Court of Australia as taxed or agreed.

4.    Set aside the orders made by the Federal Circuit Court on 29 May 2014 and in lieu thereof:

(1)    Order absolute in the first instance for a writ of certiorari to quash the decision of the second respondent made on 8 January 2014.

(2)    Order absolute in the first instance for a writ of mandamus directed to the second respondent to determine the applicant’s application for review according to law.

(3)    The first respondent to pay the applicant’s costs in the Federal Circuit Court.

Associate:

Dated:    9 December 2014