FEDERAL COURT OF AUSTRALIA

SZWBG v Minister for Immigration and Border Protection [2015] FCA 901

THE COURT ORDERS THAT:

1.    The name of the second respondent be amended to the “Administrative Appeals Tribunal”.

2.    The application for leave to appeal filed on 30 March 2015 be dismissed.

3.    The applicant to pay the first respondent’s costs fixed in the sum of $2,000.00.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

1    The applicant is a citizen of India. He arrived in Australia in May 2013. Just over two months later he applied for a protection visa under s 36 of the Migration Act 1958 (Cth) (the Act). That application was refused first by a delegate of the first respondent, the Minister for Immigration and Border Protection (Minister), and then upon review by the second respondent, then the Refugee Review Tribunal (Tribunal). The applicant then applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision pursuant to that court’s jurisdiction under s 476 of the Act. That application was summarily dismissed by the primary judge on the basis that it did not raise an arguable case for the relief claimed.

2    The applicant now seeks leave to appeal the judgment of the primary judge. Leave is required because the decision to dismiss the application was an interlocutory decision.

the visa application and the tribunal’s decision

3    The applicant claimed that he met the criteria for the grant of a protection visa because he feared persecution, or that there was a real risk that he would suffer significant harm, if he was required to return to India. There were two apparent grounds for those claims.

4    The first ground was that the applicant claimed to have been a member of an organisation in India, the Tamil Nadu Muslim Munnetra Kazhagam (TMMK). As its name suggests, the TMMK is a Muslim political organisation in Tamil Nadu in southern India. Prior to his departure to Australia, the applicant resided in Chennai, the capital of Tamil Nadu, where the TMMK is primarily based.

5    The applicant gave evidence in the Tribunal about violence and unrest in Tamil Nadu between TMMK, and Muslims generally, and rival Hindu political parties, the Rashtriya Swayamsevak Sangh (RSS), and the Bharatiya Janata Party (BJP). He also gave evidence of violence or threats of violence directed specifically at him as a result of his involvement with TMMK. The applicant resigned from the TMMK in 2010, but claimed that members of RSS nevertheless came looking for him in 2012, visited his home and office and attacked his son. The applicant claimed that he feared being threatened or attacked by members of the RSS or BJP by reason of his past association with TMMK if he returned to India. He claimed that the BJP are running India and targeting Muslims. He said he could not rely on protection from the state.

6    The second ground involved the applicant’s past activities as a member of an anti-nuclear group, the People’s Movement Against Nuclear Energy (PMANE). The applicant claimed that in 2011 or 2012, he was involved in a protest staged by PMANE. He also said that he participated in a hunger strike in 2012, again as part of his activities as a member of PMANE. As a result of this latter action, the applicant was arrested and taken to a police station. He was later released without charge. The applicant had not been in contact with PMANE since his arrival in Australia, but claimed that he may resume participation in some of PMANE’s activities if he returned to India.

7    The Tribunal accepted much of the applicant’s evidence concerning his past activities with TMMK and PMANE and the incidents arising from his association with those organisations. However, the Tribunal made three important factual findings that turned out to be fatal to the applicant’s claim to meet the protection visa criteria.

8    First, to the extent that the applicant’s claims involved a fear of persecution arising from the fact that he was a Muslim, the Tribunal did not accept that merely being a Muslim in India gave rise to a well-founded fear of persecution.

9    Second, whilst the Tribunal accepted that the applicant had suffered some harassment in Chennai as a result of his membership of TMMK, the Tribunal was not satisfied that the harassment continued after his resignation from TMMK in 2010. The Tribunal gave detailed reasons for ultimately concluding that the applicant’s claim that he was being harassed by the RSS or BJP after 2010 was implausible, and for not accepting that the two serious incidents that the applicant said took place in 2012 in fact occurred.

10    Third, whilst the Tribunal accepted the applicant’s evidence concerning incidents relating to his past activities and association with PMANE, the Tribunal found that the applicant did not have a well-founded fear of being persecuted in India as a result of any past or future association with PMANE. The Tribunal noted that there was no evidence that PMANE’s protests are continuing in Tamil Nadu. The Tribunal concluded that in those circumstances, even if the applicant, upon return to India, participated in further activities with PMANE, there was only a remote chance that he would be subjected to serious harm.

11    The Tribunal concluded, largely on the basis of these three findings, that the applicant did not have a well-founded fear of being persecuted in India for reasons of his religious or political opinions or arising from the fact that he was Muslim, had been associated with TMMK, or had and might again be associated with PMANE. The Tribunal also concluded, essentially for the same reasons, that there were no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there was a real risk he will suffer significant harm.

Proceedings in and judgment of the Federal Circuit Court

12    The applicant’s application for judicial review was filed in the Federal Circuit Court on 2 February 2015. It contained three grounds of review. They may be summarised as follows.

13    The first ground was that the Tribunal had constructively failed to exercise its jurisdiction because it failed to consider documents the applicant submitted to corroborate his claims. It was contended that the Tribunal gave no weight to these documents because it made adverse credit findings. No particulars of the documents allegedly not considered by the Tribunal were provided.

14    The second ground in the application was that the Tribunal failed to comply with the mandatory requirement under s 424A (read with s 424AA) of the Act to give the applicant clear particulars of information it considered would be part of the reason for reaffirming the decision under review. No particulars of the information that should have been, but was not, given to the applicant, were provided.

15    The third ground was that the Tribunal failed to consider an integer of the applicant’s claims. That integer was said to be that a liberal Muslim was at risk of harm from radical Hindus in India and was not able to access effective state protection.

16    For reasons that will become apparent, it is necessary to say a little more about the procedures that took place in the Federal Circuit Court after the filing of the applicant’s application. As earlier indicated, the application was filed on 2 February 2015. The application was given a first court date of 26 February 2015.

17    At the first court date, a registrar made various directions in relation to the further conduct of the matter. Those directions included that the applicant have leave to file any evidence, any amended application, and any written submissions, on or before 16 March 2015. The matter was also listed for a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (the Rules) on 20 March 2015. Thus, the applicant was given just over three weeks to prepare for the show cause hearing, and was given just over two weeks in which to file any further documents he wished to rely on in support of his application.

18    Under r 44.12(1)(a) of the Rules, the Federal Circuit Court is empowered to dismiss an application if it is not satisfied that the application has raised an arguable case for the relief claimed. Rule 44.12(2) provides that such a dismissal is interlocutory in nature. Rule 44.13(1) of the Rules provides that at the hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.

19    The applicant appeared unrepresented by a legal adviser at the hearing of the show cause application on 20 March 2015. The record shows that the applicant was assisted by a Tamil interpreter. The primary judge considered each of the grounds of the application and held that none of them raised an arguable case for the relief sought.

20    In relation to ground 1, the primary judge found that the allegation that the Tribunal failed to consider, or give weight to, documents provided by the applicant to corroborate his claims misconceived the Tribunal’s reasons for affirming the refusal of the applicant’s visa application. The primary judge reasoned that the Tribunal had regard to and accepted the documents provided by the applicant. The reasons given by the Tribunal for ultimately not accepting that the applicant was subject to harassment after 2010 had nothing at all to do with the documents the applicant had provided. Nor did the documents relevantly assist the applicant’s case in respect of the three critical findings made by the Tribunal.

21    Two additional points should be added. First, the applicant’s arguments in the court below in relation to ground 1 appeared not to rise any higher than bare general assertion. No attention appears to have been given to any specific documents said to have been ignored by the Tribunal. Second, the suggestion in ground 1 that the Tribunal gave no weight to the documents because of credit findings had no merit. The Tribunal’s reasons do not suggest that the Tribunal disregarded any documents because of any adverse credit finding. There was thus a clear disjunct between ground 1 in the application and the Tribunal’s reasons. In any event, as the primary judge found, questions of weight were matters for the Tribunal.

22    In relation to ground 2, the primary judge noted that the information that was said to be required to be provided under s 424A of the Act was unparticularised. At the hearing, the primary judge asked the applicant to point out what information he said was required to be disclosed to him but was not. The applicant gave a nonresponsive answer. That alone was perhaps a sufficient reason to find that this ground was unarguable. The primary judge also found, however, that the Tribunal’s reasons revealed that its decision was based entirely on the applicant’s own evidence and so-called “country information”. Such information was not subject to the disclosure obligations under s 424A: see s 424A(3)(a) of the Act.

23    In relation to ground 3, the primary judge accepted the Minister’s submissions that it was not squarely part of the applicant’s case that a liberal Muslim in India was at risk of harm from radical Hindus. In any event, the primary judge found that the Tribunal considered all aspects of the applicant’s claims. The primary judge found that the Tribunal’s findings in respect of the applicant’s claims were open to it on the evidence.

24    Having regard to these findings, the primary judge dismissed the applicant’s application under r 44.12 of the Rules on the basis that it raised no arguable case for the relief claimed.

Should leave to appeal be granted?

25    It is well-accepted that an application for leave to appeal is required to establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and that substantial injustice will result from a refusal of leave: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399; Bienstein v Bienstein (2003) 195 ALR 225 at [29].

26    The critical question in relation to the applicant’s leave application is whether the summary dismissal of his application under r 44.12 of the Rules is attended with sufficient doubt to warrant reconsideration on appeal. That question requires consideration of the applicant’s proposed appeal grounds.

27    The draft notice of appeal contains the following two grounds:

Grounds of appeal

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant 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 learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.

28    Without further particularisation, elaboration or explanation, these grounds are essentially meaningless. Unfortunately, the applicant has not provided any meaningful submissions, written or oral, in support of these two grounds. Worse still, these two grounds do not engage at all with either the grounds relied on by the applicant in the Federal Circuit Court or the reasons of the primary judge.

29    These two grounds are also familiar to the Court. In SZSLS v Minister for Immigration and Border Protection [2013] FCA 1187, Collier J referred to twenty-three other cases in which grounds identical to these two grounds had been pleaded. In SZSYS v Minister for Immigration and Border Protection [2014] FCA 857 at 17, Katzmann J identified a further twelve matters pleading the same grounds. It would seem that these grounds are a species of a template or boilerplate grounds frequently relied upon by unrepresented applicants in these types of matters. Whilst it is unfortunate that so many applicants in these types of matters have to prepare applications without the assistance of a legal adviser or a competent migration adviser, the sooner that hapless applicants become aware that it is utterly pointless to include such template grounds in appeals or leave applications, the better.

30    In relation to ground 1, the applicant did not argue in the court below that the Tribunal acted in a manifestly unreasonable way, or ignored any aspect of persecution or harm in terms of s 91R of the Act, whatever that might mean. Even if such an argument had been advanced in the court below, it would not have had any merit. There was nothing unreasonable about the Tribunal’s decision. It was certainly not legally unreasonable in the sense explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

31    Nor did the applicant allege in the court below that the Tribunal failed to observe, or breached, any statutory obligation, other than the obligation under s 424A of the Act. The primary judge correctly rejected as unarguable any contention that the Tribunal had failed to comply with s 424A of the Act. The applicant has not pointed to any information that the Tribunal failed to disclose pursuant to s 424A of the Act.

32    The reference to s 91R in the context of this ground of the application is essentially meaningless. Section 91R of the Act deals with the meaning of “persecution” and “serious harm” in the context of protection visa applications. The applicant did not argue in the court below that the Tribunal erred in construing or applying s 91R to the case at hand. Nor is there any basis for so finding.

33    Ground 2 of the proposed notice of appeal is even more meaningless than ground 1. It contains no particulars of the errors said to have been made by either the Tribunal or the primary judge. In any event, a fair reading of the reasons of the Tribunal and the judgment of the primary judge reveals no demonstrable error. The primary judge correctly found that the errors alleged in the applicant’s judicial review application were unarguable and did not err in dismissing the application under r 44.12 of the Rules.

34    It remains to say something about the oral submissions that the applicant did make in support of his application for leave to appeal. The submissions made by the applicant did not address, at all, his proposed grounds of appeal. Rather, his submissions were directed at establishing that the show cause hearing before the primary judge was unfair. In that regard, he submitted that he had insufficient time to prepare for the show cause hearing, that he appeared unrepresented at that hearing, and that the Tamil interpreter that assisted him at the hearing was “not good.”

35    In relation to the applicant’s contention that he was given insufficient time to prepare for the show cause hearing, as earlier indicated at the first hearing date the applicant was given two weeks in which to file any amended application or additional documents he wished to rely on in support of his application. He was also given effectively three weeks in which to prepare for the hearing. In the particular circumstances of this case, and having regard to the evident purpose of r 44.12 of the Rules, the applicant’s submission that he was given insufficient time is rejected.

36    In relation to the fact that the applicant was unrepresented at the show cause hearing, it is unfortunate and regrettable that applicants in the position of this applicant are put in the position of having to appear for themselves at such hearings. It is difficult for any person without legal qualifications to appear in a court. It is even more difficult when unrepresented persons have to deal with difficult statutory provisions, such as s 36 of the Act, and difficult concepts, such as jurisdictional error.

37    Nonetheless, the fact that the applicant was unrepresented does not demonstrate that the show cause hearing was unfair. The judgment of the primary judge reveals that the primary judge dealt with the applicant with scrupulous fairness. The primary judge appears to have explained to the applicant the procedure that would be followed and gave him every opportunity to make such submissions as he wished to make in support of his application.

38    In relation to the applicant’s contention that the interpreter that was assisting him at the hearing was not an adequate interpreter, the applicant faces a number of difficulties. First, there is nothing to suggest that the applicant raised with the primary judge any difficulty that he was having in relation to the interpretation. Second, parts of the judgment of the primary judge reveal that the primary judge was plainly able to communicate effectively with the applicant. Third, the applicant has not led any evidence of any defects in the interpreting that occurred at the show cause hearing. Nor has he given any specific details of any difficulties he encountered. His case rises no higher than bare assertion.

39    The evidence, such as it is, is also at odds with the applicant’s general assertions. In support of his application for leave to appeal, the applicant filed an affidavit sworn by him on 30 March 2015. That affidavit refers to the fact that the applicant appeared unrepresented at the show cause hearing. It says nothing about any defective interpretation that occurred at the hearing. That suggests that the applicant’s claim that the interpreter was “no good” is a recent invention.

40    For these reasons, the applicant’s assertions that the interpreting was defective are rejected. There is no basis for concluding that the show cause hearing was conducted in any way unfairly towards the applicant.

Disposition

41    It follows that the applicant has failed to demonstrate that the decision of the primary judge is attended by any or any sufficient doubt to warrant the grant of leave.

42    It follows that the application must be dismissed.

43    The orders of the Court are as follows:

1.    The name of the second respondent be amended to the “Administrative Appeals Tribunal”.

2.    The application for leave to appeal filed on 30 March 2015 be dismissed.

3.    The applicant pay the first respondent’s costs fixed in the sum of $2,000.00.

Associate:

Dated:    20 August 2015