FEDERAL COURT OF AUSTRALIA

SZNQS v Minister for Immigration and Border Protection [2016] FCA 637

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    The Appellant is a citizen of India who first entered Australia on 27 October 2008.

2    After having previously made an application for a protection visa which was refused by a delegate of the Minister in January 2009, and after having unsuccessfully pursued an application seeking review of that decision, the Appellant applied again for a protection visa in October 2013. That application was refused by a delegate of the Minister in July 2014. The Appellant sought review of that decision. The Appellant appeared before the Administrative Appeals Tribunal on 28 July 2015 with the assistance of an interpreter. The Tribunal affirmed the delegate’s decision on 31 July 2015.

3    An Application seeking judicial review of the Tribunal’s decision was then filed with the Federal Circuit Court of Australia (the “Federal Circuit Court”) in August 2015. The grounds upon which review was sought were:

    an alleged breach of s 424A (“read with section 424AA”) of the Migration Act 1958 (Cth) (the “Migration Act”); and

    an allegation that the Tribunal’s decision “was unjust and made without taking into account the full gravity of Applicant’s circumstances and consequences of claims”.

The Federal Circuit Court dismissed the application in November 2015: SZNQS v Minister for Immigration & Anor [2015] FCCA 3124.

4    On 14 December 2015 the Appellant lodged a Notice of Appeal in this Court. The Grounds of Appeal are as follows (without alteration):

Ground of appeal

1.    The Hon Judge failed to consider that the second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reasons for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

Particular

The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

2.    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.

The first of these Grounds mirrors the first ground of review advanced before the Federal Circuit Court; the second Ground of Appeal is expressed somewhat differently to the second ground of review. But nothing ultimately turns on any difference in expression.

5    The Appellant appeared before this Court by way of telephone. Present in Court was an interpreter. The Respondent Minister appeared by way of a solicitor.

6    The appeal is to be dismissed.

Sections 424A & 424AA – Ground 1

7    Section 424A(1) the Migration Act at the relevant time provided as follows:

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).

Section 424AA then provided:

Information and invitation given orally by Tribunal while applicant appearing

(1)    If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a)    the Tribunal may orally give to the applicant 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)    if the Tribunal does so—the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

(2)    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).

8    Without attempting in any way to canvas the manner of application of s 424A more generally, it is sufficient for present purposes to recall four basic, well-accepted propositions, namely:

    compliance with the terms of s 424A is mandatory and a failure to comply with its terms constitutes jurisdictional error: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [75] to [77], (2005) 228 CLR 294 at 320 to 322 per McHugh J; at [173], 345 to 346 per Kirby J; and at [208], 354 to 355 per Hayne J. Chief Justice Gleeson and Gummow J dissented. “Given the significance of the obligation in the context of the review process”, McHugh J observed, “it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act.” See also: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [13], (2007) 235 ALR 609 at 614 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ;

    section 424A is not engaged unless the “information” in question is “information” that the Tribunal “considers would be the reason, or part of the reason, for affirming the decision that is under review”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [21], (2007) 235 ALR at 617;

    the Tribunal’s disbelief of a claimant’s account, and its subjective appraisals, thought processes or determinations do not fall within the term “information”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18], (2007) 235 ALR at 616. The meaning of the term “information”, it was there said, “is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”. See also: VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24], (2004) 206 ALR 471 at 476 to 477 per Finn and Stone JJ; and

    by reason of s 424A(3), information which is commonly referred to as “country information” does not fall within the reach of s 424A(1): SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [82] to [83] per Tracey and Foster JJ. See also: WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44] to [46] per RD Nicholson, Jacobson and Bennett JJ.

9    With reference to the facts of the present case, there was no identification of the “information” which the Appellant maintained engaged the terms of s 424A. Nor is there any such “information” readily apparent from those materials incorporated in the Appeal Book which could potentially fall within s 424A(1). The Tribunal’s reasoning process was largely to analyse the materials placed before it by the Appellant and to analyse the inconsistencies in his account when questioned about his claims. But the process by which the Tribunal reasoned from factual findings to the conclusions ultimately reached does not attract s 424A: SZBYR; VAF. Nor does the country information relied upon by the Tribunal fall within s 424A(1).

10    The Federal Circuit Court Judge concluded that “there is no basis for an allegation of breach of s.424A”: [2015] FCCA 3124 at [8]. No error is apparent in that conclusion.

11    Ground 1 of the Notice of Appeal is rejected.

The Tribunal acting in an unreasonable way – Ground 2

12    The second Ground of Appeal seems potentially to contain two limbs, namely:

    an allegation that the Tribunal “acted in a manifestly unreasonable way when dealing with the applicant claim [sic]”; and

    an allegation that the Tribunal ignored “the aspect of persecution and harm in terms of Sec. 91R of the Act…”.

It is difficult to discern substance in either limb. The two limbs of the argument nevertheless seem to merge.

13    The first limb of the second Ground of Appeal is perhaps simply a different means of expressing the argument advanced before the Federal Circuit Court, that the “Tribunal’s decision was unjust and made without taking into account the full gravity of [the] Applicant’s circumstances and [the] consequences of [his] claims”.

14    So construed, it should be noted that the Tribunal was conscious of what it referred to as “[t]he applicant’s capacity to put his case”. It addressed this concern in part as follows:

10.    At hearing, the applicant did not always answer material questions put to him in what appeared to be a meaningful way (though when pressed, an apparently meaningful response was generally provided). He did not appear to have any health condition at the hearing that may impede his capacity to put his case (something conceded by the migration agent at hearing). Neither did there appear to be any material confusion between the applicant and interpreter.

The Tribunal concluded:

11.    At any rate, after discussing his claims at hearing, where the applicant was accompanied by his migration agent, the Tribunal is satisfied the applicant was given a real opportunity to put evidence and submissions in support of his case.

There does not appear to be any error in this conclusion of the Tribunal. Nothing is apparent from the reasons for decision of the Tribunal which provides any reason to question its assessment of the adequacy of the opportunity extended to the Appellant. Nor is there anything apparent from the Tribunal’s reasons which expose any failure on its part to “take into account the full gravity” of the Appellant’s circumstances. The Tribunal was conscious of the Appellant’s capacity to advance his claims, and proceeded to evaluate those claims accordingly.

15    The two limbs to the second Ground of Appeal perhaps have the potential to merge if the Ground were construed simply as a failure on the part of the Tribunal to consider the “full gravity” of the claims made by the Appellant, including his fear of persecution and harm if returned to India.

16    In very summary form, the Appellant claimed that:

    he was from Gujarat and supports the Bharatiya Janata Party (the “BJP”) which promotes Hindutva principles; and

    because of his affiliation with the BJP he faced harm from Muslim extremist groups and from the Indian National Congress Party.

He claimed that if he returned to India he would continue to face a real risk of harm and further claimed that:

    even if he moved to another part of India he would continue to face harm because he would continue to support the BJP; and

    he could not get state protection because Muslim extremists and the Congress Party had influence throughout India.

The delegate was not satisfied that the Appellant had substantiated a claim of well-founded fear of persecution. When the matter proceeded to hearing before the Tribunal, the Appellant gave evidence with the assistance of an interpreter. The Tribunal recounted the claims made and concluded in part as follows:

24.    It again took a substantial effort to elicit the above claims at hearing. However, the Tribunal has decided to reject all of the above claims as false. That is because, and even considering the length of time between relevant incidents and the time of the Tribunal decision, the substantial lack of detail in the applicant’s responses to material questions have satisfied me the applicant was not recalling evidence from within his personal experience.

25.    Therefore, the Tribunal does not accept the applicant was a worker for the BJP as claimed; or that he was an active supporter of the BJP; or that he was even perceived to be a worker or supporter of the BJP. However, I propose to accept the applicant voted for the BJP in his home area in India.

26.    Given the above findings (and though possibly redundant), the Tribunal therefore does not accept the applicant was (for instance) targeted by opposition Congress Party supporters, members of the Muslim community, or criminal gangs or elements, as claimed. I am satisfied this evidence (and all related evidence) is false. For the same reasons, the Tribunal rejects as false the applicant’s evidence (at hearing) that his wife is still told by local persons in and around her present location in India (some 60kms from the applicant’s former home in India), that the applicant is being sought after by his opponents. Further, if (for instance) the applicant’s shop was damaged by fire, I am not satisfied it was for the reasons claimed by the applicant, or that it was for any reason that might give rise to protection obligations in Australia.

No question, it is respectfully considered, arises of the Tribunal “ignoring the aspect of persecution and harm”. The Tribunal considered the claims made by the Appellant and rejected them as factually “false”. The Tribunal clearly did not believe this aspect of the claim. It may be noted that the Tribunal earlier expressed the view that it “was not satisfied the applicant was generally a credible witness” and concluded that “the applicant has at least embellished, if not fabricated, this part of his claims” (at paras [15] to [16]). This conclusion was expressed with respect to the Appellant’s claim that his father worked for the BJP, or was an “active supporter of the BJP”.

17    The Federal Circuit Court Judge, when addressing the second ground before that Court, referred to the “comprehensive review” undertaken by the Tribunal and concluded that it was “a matter for the Tribunal whether it accepted the applicant’s claims in relation to his involvement with the BJP”: [2015] FCCA 3124 at [10]. The challenge to the Tribunal’s reasons was there characterised as “nothing more than an impermissible challenge to the merits of the matter…”. There is no error apparent in these conclusions of the Federal Circuit Court Judge.

18    But the second limb to the second Ground of Appeal makes express reference for the first time to s 91R. It contends that the Tribunal “ignor[ed] the aspect of persecution and harm in terms of Sec. 91R of the Act”. This may have been an attempt to challenge the conclusion of the Tribunal that “it does not have power to consider the Refugee Convention criterion in s. 36(2)(a), and has proceeded on the basis that it can only consider the applicant’s claims under the Complementary Protection provisions in s. 36(2)(aa) of the Act” (at para [27]). In reaching that conclusion, the Tribunal relied on the decision of the Full Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, (2013) 212 FCR 235.

19    There was no like argument advanced for resolution before the Federal Circuit Court. The starting proposition is that a party is normally bound by the conduct of his case at trial: cf. Metwally v University of Wollongong (1985) 59 ALJR 481 at 483. But leave to raise a new argument may be granted where it is “expedient in the interests of justice to do so”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] per Kiefel, Weinberg and Stone JJ.

20    Leave to advance the new argument is refused. Even though it is understood to raise a discrete question of law and a question dependent upon the reasoning of the Tribunal alone, it is an argument without factual substance. Both the delegate and the Minister rejected the Appellant’s claims as false. It is not “in the interests of justice” to allow an argument to be advanced which is devoid of any factual support.

21    Given the adverse factual findings made by the Tribunal, the Appellant had failed to make out any claim which attracted “protection obligations” and could not bring himself within s 36(2)(a) or (aa) of the Migration Act. Given the adverse factual findings, s 91R takes the Appellant’s claims no further.

22    To the extent that the second Ground of Appeal seeks to re-cast the argument as it was advanced for resolution before the Federal Circuit Court, it is rejected; to the extent that it seeks to advance a new argument not previously relied on, leave to raise the new argument is refused. The claim, however expressed, is factually without substance.

CONCLUSIONS

23    Both Grounds of Appeal have been rejected.

24    The appeal should be dismissed with costs.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Associate:    

Dated:    2 June 2016