FEDERAL COURT OF AUSTRALIA

SZUMS v Minister for Immigration and Border Protection [2016] FCA 542

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s application for an adjournment be dismissed, together with his application for leave to file an amended notice of appeal.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    This is an appeal against a judgment dated 3 March 2016 of the Federal Circuit Court of Australia (the FCCA) (see SZUMS v Minister for Immigration and Border Protection [2016] FCCA 696 (SZUMS)). On 22 March 2016, the appellant lodged electronically a notice of appeal containing two grounds of appeal. The first related to an alleged error by the primary judge in not finding that the then Refugee Review Tribunal (the Tribunal) made a jurisdictional error in not complying with s 424A of the Migration Act 1958 (Cth) (the Migration Act) and denied the appellant procedural fairness. The second ground of appeal claimed that the primary judge erred in not holding that the Tribunal made a jurisdictional error by failing to consider correctly the social group of which the appellant said he was a member in determining whether he had a well-founded fear of persecution for the purposes of s 36(2)(aa) of the Migration Act.

2    On 13 May 2016, the appellant filed an affidavit. He deposed that he only received a copy of the ex tempore reasons for judgment in the first week of April and he noted then that they were dated 31 March 2016. He stated that, because he did not have a copy of the judgment when he filed his original notice of appeal, he could not draft “detailed and correct grounds of appeal”. At the commencement of the hearing, the appellant sought leave to file an amended notice of appeal. No draft notice of appeal was provided.

3    The appellant sought an adjournment of the hearing so that he could “seek legal help with some non profit (sic) community legal organisations advocating the cause of refugees”. He stated that he did not know which organisation might be prepared to assist him but he needed more time to seek advice and amend his notice of appeal.

4    The Minister opposed the appellant’s request for an adjournment and for his application for more time to file an amended notice of appeal. The Minister submitted that the appellant had had ample time since obtaining a copy of the FCCA’s reasons to obtain assistance and draft a proposed notice of appeal.

5    I was not satisfied that the appellant had established a sufficient case for the hearing to be adjourned. By his own evidence, he had had a copy of the FCCA’s reasons for judgment since the first week of April. Thus he has had more than five weeks to seek and obtain the legal assistance which he says he needs. No further particulars were provided by him of the likely timeframe for him now obtaining such assistance, nor did he identify the community legal organisations which he proposed to approach. The appellant offered no evidence as to the nature or outcome of any inquiries which he had already made with such bodies. The adjournment request was refused.

Background facts

6    The appellant did not dispute the primary judge’s summary (at [43]) of the relevant background facts which were based on the Tribunal’s findings. The appellant made the following claims:

a)    he was born in the Tamil Nadu state of India;

b)    he was a member of the Pallar caste, the lowest caste in India, and as a result had suffered discrimination and persecution all his life;

c)    in India he had been involved with two political parties which supported the rights of Dalits, members of lower castes;

d)    he had joined the Puthiya Thamizhagan Party (‘PT party’) but when he married in 2000 the leader of the PT Party opposed the match so he left the party;

e)    he later joined the Viduthalai Siruthaigal Party (‘VS party’) and worked for it during the 2006 state elections. He had also assisted the party leader in the 2009 parliamentary elections;

f)    he had suffered harm and discrimination in India from members of upper castes, other political parties and the police;

g)    he feared that if he returned to India he would be discriminated against and would be unable to obtain employment or food;

h)    he also feared that if he returned to India he would be arrested and tortured by the police as a Dalit activist. He feared that if there was any trouble with the castes he would be targeted by the police. The police had a quota of the number of people they had to detain and if they failed to reach the quota they would harass and assault him; and

i)    he could not relocate because the situation for Dalits was the same everywhere in India.

7    The Tribunal made adverse findings regarding the appellant’s credibility. It found that he was not a witness of truth and had fabricated his claims of past harm and possible future harm in order to obtain a protection visa.

8    The Tribunal’s statement of decision and reasons records at [10] that, at the end of the Tribunal hearing, the Tribunal told the appellant that although it had not made up its mind:

… it was concerned that the applicant’s claims may not be true, and that he may not be a Dalit or have suffered the harm claimed, for the reasons claimed. It said that even if he is a Dalit, the country information does not necessarily indicate that he would have a real chance of serious harm or a real risk of significant harm.

9    The appellant had claimed that he had been involved in two political parties, from 1996 until 2013, and was a Dalit activist. He named the two parties and gave detailed evidence to the Tribunal regarding his involvement in them. The Tribunal noted that the appellant’s evidence on these matters was more detailed in the written statement he provided in support of his application and that his evidence to the Tribunal regarding his involvement with the parties was much less detailed. The Tribunal found at [27] that the appellant had changed his evidence about his work for the political parties, which undermined his claim that he had worked for them. The Tribunal added that its concern was further heightened by the appellant’s response to questions asked of him by the Tribunal about the flags of the two political parties. In particular, the Tribunal found that the appellant was unable accurately to describe the flags of the respective parties. It found that his description of the first flag was “completely wrong” and that concerning the second flag was “close” but also not accurate. The Tribunal said that the appellant’s description of the flags of his claimed political parties “generally undermines his claims to have actively worked for these parties for 17 years in total”. The Tribunal showed the appellant copies of the two flags after he had provided his erroneous descriptions of them.

10    The Tribunal also found at [34] that it had “significant concerns”, based on the appellant’s evidence, that he may not be from a Dalit class as he claimed. It pointed to the fact that in his written statement, the appellant claimed to belong to a depressed caste called “Pallar” and he contrasted this caste with another depressed caste, “Parayars”. In his second written statement, the appellant confirmed that he was born into the Pallar/Pallan caste and was a Dalit. In neither of these statements did the appellant suggest that he belonged to the Parayar caste. The Tribunal, noted, however, that the appellant’s evidence at the Tribunal hearing concerning his caste was “confused”. He responded to a question at the hearing as to what was his caste, by saying that it was “Parayar, Pallar caste”. When the Tribunal drew his attention to the inconsistency between that evidence and his earlier written statements, the appellant suggested that “they are sometimes called Pallar but mostly called Parayar”. The Tribunal noted at [35] that it drew to the appellant’s attention that this was inconsistent with available country information, which suggested that the two castes were not only different, but there had been conflict and endemic differences between them. The Tribunal noted that the appellant responded by saying that they are both low castes, but he did not suggest that the Tribunal’s country information was incorrect.

11    At [36] of its statement of decision and reasons, the Tribunal expressed its conclusion on this matter as follows:

The Tribunal considers that the country evidence shows that the Pallar caste and the Paraiyan caste are different castes, albeit both Dalit. The Tribunal considers that if the applicant was of one caste, that he would have been able to clearly state this to the Tribunal. The Tribunal considers that the applicant’s evidence undermines that he is a Dalit, from either the Pallar caste or the Paraiyan caste.

12    In [43], the Tribunal summarised its credibility finding by stating that “having regard to the above matters, and having considered all of the evidence, the Tribunal finds that the applicant is not a witness of truth”. It proceeded to add that, having considered all of the evidence, it found that the appellant had fabricated his claims of past harm and future persecution and harm so as to obtain a protection visa. In [45], it stated that, on the basis of its adverse credibility finding, it did not accept inter alia that the appellant:

... is a Dalit, from either the Pallar/Pallan caste or the Paraiyan caste; that he is a Dalit activist; that he has been a member of the claimed political parties or any other political or religious movement; that he has come to the adverse attention of the authorities or groups or castes in India; that he was involved in the protest in 1999 or any other political action; that he has previously been arrested or detained or convicted or that he has had false cases filed against him; that he has suffered previous past harm or adverse attention at the hands of any caste or the authorities including the police, in India.

The FCCA proceeding

13    The applicant applied in the FCCA under s 476 of the Migration Act for a judicial review of the Tribunal’s decision. He raised three grounds of judicial review. Only the second and third grounds of review are relevant to the appeal. The second ground of review below claimed that the Tribunal erred in law by failing to issue a notice under s 424A of the Migration Act in respect of information relied upon by the Tribunal. The information was particularised as the Tribunal confronting the applicant at the time of hearing about the design of flags of the political party and that copies of such “external information” ought to have been provided to him in advance.

14    The third ground of review below claimed that the Tribunal had erred in law in misconstruing and misapplying the proper test relating to persecution by failing to consider correctly the social group to which the appellant said he belonged and what might reasonably be expected if he were relocated within India.

15    The primary judge rejected both these grounds of review. As to ground 2, the primary judge held that information concerning party flags upon which the appellant was questioned at the hearing did not fall within the scope of “information” for the purposes of s 424A(1).

16    Section 424A provided:

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.

(4)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

17    After setting out s 424A(1), the primary judge made the following finding at [17]:

In this case the Tribunal did not make its decision to affirm the delegate's decision because the information concerning the party flags contradicted the applicant's case or otherwise provided a reason for affirming the delegate's decision, but because the ignorance which the applicant displayed concerning the flags suggested that he was not politically active as he alleged.

18    As to ground 3, the primary judge rejected both its limbs for the following reasons:

(a)    as to the first limb which focussed on the appellant’s claimed membership of a particular social group, the primary judge found at [19] that the Tribunal did not suggest that if the appellant had been a Dalit he would not have been a member of a particular social group as that expression is properly understood. Rather, the Tribunal found that it did not accept that the appellant was a Dalit from either the Pallar/Pallan caste or the Parayar caste. Accordingly, because the Tribunal did not accept the appellant’s claim to be a member of the Dalit caste, there was no requirement for it to consider whether his membership of such a caste amounted to membership of a particular social group which might lead him to have a well-founded fear of persecution for a Convention reason; and

(b)    as to the appellant’s claims which related to the possibility of his relocation within India, the primary judge found that this limb was “misconceived” because no finding was made by the Tribunal that the appellant could avoid persecution in India by relocating elsewhere in that country. The primary judge stated that this issue was not addressed by the Tribunal because it did not accept the appellant’s allegation that he had a well-founded fear of persecution for a Convention reason.

The appeal

19    It is convenient to set out in full the original two grounds of appeal which, as noted above, reflect grounds 2 and 3 of the judicial review application below:

Grounds of appeal

1.    His Honour the Federal Circuit Court Judge erred in not holding that the Tribunal made jurisdictional error by failing to issue a notice under Sec 424A in respect of information which the Tribunal relied upon, which were not adduced by the applicant or applies to the social group to which the applicant belongs in general and denied the applicant of procedural fairness in rebutting such facts.

Particulars

The court affirmed the findings of the Tribunal which confronted the applicant at the time of hearing about the design of flags of the political party (para 27 & 28 of the order). The Tribunal should have given a copy of any such external information in advance to the applicant especially before it can draw any adverse inference.

2.    His Honour the Federal Circuit Court Judge erred in not holding that the Tribunal made jurisdictional error as the Tribunal erred in law in that it misconstrued and misapplied the proper test relating to persecution by failing to consider correctly the social group to which the applicant belongs and what might reasonably be expected of the applicant with respect to his relocation within India.

Particulars

The applicant respectfully submits that the Learned Judge erred in upholding the order of the Tribunal as it failed to consider all material on record and misapplied the proper test in connection with social group to which the applicant belongs. Further the Tribunal failed to consider how the well founded fear of persecution in the case of the applicant who belongs to a social extremely backward group but politically very active group. These people like the applicant form a separate social group which mainly consists socially very backward but politically very assertive group. Further in case of relocation in India it is submitted that discrimination and persecution against this group (politically active lower caste group) is prevalent throughout India and that it is not reasonable for the applicant to relocate anywhere in India. In this regard the applicant relies on the decision made in in SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18 Gummow, Hayne and Crennan JJ stated (at [24]) that in considering relocation:

What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.

Ground 1

20    The nature and extent of the requirements imposed by s 424A have been considered in many cases. The relevant authorities include SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 (SZBYR); Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; 238 CLR 507 (SZLFX) and, more recently, the Full Court’s decision in SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; 229 FCR 90 (SZTGV).

21    It may be accepted that a breach of s 424A(1) generally constitutes a jurisdictional error and invalidates a decision by the Tribunal (see SAAP v Minister for Immigration and Multicultural and Indigenous Affair [2005] HCA 24; 228 CLR 294 at [77], [173] and [208]).

22    What constitutes “information” for the purposes of s 424A(1)(a) was explained by the High Court in SZBYR at [16]-[18]:

[16]    … First, while questions might remain about the scope of para (b) of s 424A(3), it was accepted by both sides that information “that the applicant gave for the purpose of the application” did not refer back to the application for the protection visa itself, and thus did not encompass the appellants' statutory declaration. In this regard, the parties were content to assume the correctness of the Full Federal Court decisions in Minister for Immigration and Multicultural Affairs v Al Shamry [[2001] FCA 919; 110 FCR 27] and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [[2006] FCAFC 2; 150 FCR 214;] Accordingly, no occasion now arises for this Court to determine whether that assumption was correct.

[17]    Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal”, or “the Tribunal's published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be ‘information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

[18]    Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute ‘information’. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [[2004] FCAFC 123; 206 ALR 471;] that the word “information”.

23    This analysis of s 424A was reaffirmed by the High Court in SZLFX at [21]-[25]. Although as the Full Court noted in SZTGV at [18] that the reasoning of the High Court in SZBYR and SZLFX is not “readily reconcilable” with the reasoning of the Full Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 at [221]-[225] per Allsop J (with whom Weinberg J agreed) and NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174; 156 FCR 205 at [74] per Allsop J, it is nevertheless clear that “information” within the meaning of s 424A(1) does not extend to the “prospective reasoning process” of the Tribunal. Moreover, such information “necessarily involves a rejection, denial or undermining of the applicant’s claims” (SZTGV at [18]).

24    As the High Court emphasised in SZLFX at [23] (in reaffirming the approach in SZBYR), “information” in the context of s 424A(1) “is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”. The appellant has established no appealable error in respect of the primary judge’s finding that s 424A(1) did not apply.

25    As the primary judge noted, the Tribunal’s decision to affirm the delegate’s decision was not because the flags of the two political parties of which the appellant claimed to have been a member contradicted his case, but rather took into account the appellant’s own misdescription of the flags as suggesting that he was not politically active as he had alleged. This was not “information” within the meaning of s 424A(1)(a).

Ground 2

26    The appellant has also failed to establish any appealable error in respect of the primary judge’s rejection of ground 3 in his judicial review application regarding his alleged membership of a social group (namely his membership of a socially extremely backward but politically active group) and the issue of a relocation. The appellant argued that the primary judge had failed to consider “all material on record and misapplied the proper test in connection with social group (sic) to which the applicant belongs”. I was not taken to any material in relation to this matter which had not been considered by the Tribunal. In any event, as the primary judge correctly observed, there was no suggestion by the Tribunal that if it had found as a matter of fact that the appellant was a Dalit, he would not have been a member of a particular social group for the purpose of assessing his claim to fear persecution. The appellant’s difficulty lay in the fact that the Tribunal found that it did not accept his claim that he was either a Dalit or had been politically active in the way he claimed.

27    Nor has any appealable error been established in respect of the primary judge’s rejection of the second limb of this ground, which relates to relocation. As the primary judge found, no finding was made by the Tribunal that the appellant could avoid persecution by relocating elsewhere in India. The issue of relocation simply did not arise having regard to the Tribunal’s rejection of the claim that the appellant had a well-founded fear of persecution for a Convention reason.

Conclusion

28    For these reasons, the appeal should be dismissed and the appellant ordered to pay the Minister’s costs. Orders will be made accordingly.

Associate:

Dated:    20 May 2016