FEDERAL COURT OF AUSTRALIA

SZVLY v Minister for Immigration and Border Protection [2016] FCA 940

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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

GILMOUR J:

1    The appellant appeals from a judgment of the Federal Circuit Court delivered on 14 March 2016: SZVLY & Anor v Minister for Immigration [2016] FCCA 539 dismissing an amended application for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the appellant a protection visa.

Background

2    The following background which is not controversial is drawn from the written submissions of the Minister.

3    The appellant, a citizen of India, arrived in Australia on 23 January 2009 as the holder of a Student (Temporary) (Class TU) visa as a dependent of his student wife's family unit. On 7 November 2013, he applied for a protection visa.

4    The appellant's claims were provided in his protection visa application. The appellant's claims to fear harm were, in summary:

(a)    He was born into a conservative Sikh family.

(b)    On 14 October 2007, he married a Hindu woman from a higher caste than his own family, and without the consent of the woman's family.

(c)    His wife's family attacked the Gurdwara where their marriage had taken place. Hindu extremist groups also threatened his family and searched for him.

(d)    The appellant and his wife moved to Australia for their safety. After several years in Australia, their marriage broke down.

(e)    The appellant's wife accused him of attempting to convert her to Sikhism and threatened to tell her parents that the appellant was abusive towards her.

(f)    If the appellant were to return to India, the Hindu extremist groups would hang him in front of Sikh people to frighten them away from attempting to convert Hindu girls to Sikhism.

5    On 24 February 2014, a delegate of the Minister decided not to grant the appellant a protection visa. On 26 March 2014, the appellant applied to the Tribunal.

The Tribunal proceedings

6    The appellant provided no further documentation in support of his review application before the Tribunal. On 18 August 2014, the Tribunal wrote to the appellant indicating that on the material before it, it would be unable to make a favourable decision and invited him to attend a hearing on 30 September 2014 to give evidence and present arguments. The appellant did not attend that hearing and the Tribunal proceeded to make a decision on the review pursuant to s 426A of the Migration Act 1958 (Cth) (the Act).

7    On 1 October 2014, the Tribunal affirmed the decision under review.

8    The Tribunal found that the appellant's claims were unsubstantiated from external sources and were vague as to most details. The Tribunal's concerns included that the appellant:

(a)    did not identify his or his wife's caste;

(b)    provided no explanation of any connection between the alleged caste difference and religious difference;

(c)    did not explain how Hindu extremist groups could be mobilised by his wife's family;

(d)    was not able to explain why he would not be able to avail himself of state protection in Punjab, a State where Sikhs form the majority; or whether he had sought state protection;

(e)    was able to live without harm in India for more than 12 months before leaving for Australia; and

(f)    did not provide a cogent explanation for the delay of nearly five years between arriving in Australia and making an application for a protection visa.

9    The Tribunal accepted that the appellant was married in India in 2007 and separated from his wife after moving to Australia. However, the Tribunal found that the information before it did not provide a sufficient basis to be satisfied that he ever suffered threats or harm of any kind as a result of his marriage.

10    For these reasons, the Tribunal was not satisfied that the applicant met the refugee criterion under section 36(2)(a) of the Act. On the same bases, the Tribunal was not satisfied that there were substantial grounds for believing that the applicant faced a real risk of significant harm and accordingly found that he failed to satisfy the Complementary Protection criterion under section 36(2)(aa) of the Act.

Federal Circuit Court proceedings

11    On 27 May 2016, following an extension of time, by consent, in which to file an application for judicial review, the appellant filed an amended application. The amended application contained 5 grounds supported by particulars. The learned primary judge rejected each ground as follows.

Ground one

12    This was essentially a complaint that the Tribunal failed to comply with s 424A of the Act. He was invited to tell the Court the particular information which should have been given to him by the Tribunal in accordance with s 424A. The appellant's response was that he did not receive any invitation to the Tribunal hearing. He did not identify any "information" which should have been put to him in accordance with s 424A, nor was any such information identifiable from the Tribunal decision record. The primary judge held that the first ground was not made out.

Ground two

13    This challenged the Tribunal finding that the appellant would not suffer serious harm if he were to relocate within India. The primary judge noted that the ground was not supported by any particulars or submissions. In any event, her Honour held that it was not necessary for the Tribunal to consider relocation in circumstances where it had concluded that the appellant did not have a well-founded fear of persecution at all and where this finding was open to it to make. Its findings were based predominantly upon its adverse findings as to the appellant’s credit.

Ground three

14    The appellant asserted that the Tribunal misconstrued the risk of fear and significant harm to him. The appellant had asserted that the Tribunal had failed to take into account certain points which he wished to rely upon. However, as the primary judge noted, this was a case where the appellant failed to attend the hearing and the Tribunal had proceeded to make its decision without taking steps to enable the appellant to appear before it. No error in that respect was established. The primary judge also considered the appellant’s contention that there were interpretation errors by the Tribunal in relation to his evidence, but found no evidence to suggest such a contention.

Ground four

15    This asserted that the Tribunal did not have jurisdiction because its "reasonable satisfaction" "was not arrived at in accordance with the requirements of the Act". The primary judge held that, in circumstances where there were no particulars in support, this was no more than a bare assertion which did not disclose any error capable of review by the Court.

Ground five

16    This asserted that the Tribunal had not considered key elements of the Refugee Convention. There were no particulars in support. Again the primary judge concluded that this was no more than a bare assertion which did not disclose any error capable of review by the Court.

17    The primary judge then went on to consider the issue raised by the Minister in accordance with its obligations as a model litigant. Relevantly, this was consideration of whether the Tribunal had appropriately exercised its discretion in accordance with s 426A of the Act by proceeding to make its determination without allowing the appellant a further opportunity to appear before it.

18    The primary judge concluded that the Tribunal had provided reasons for the exercise of the discretion. Her Honour outlined the steps which the Tribunal had taken in terms of communicating with the applicant on the evidence which was before the Court reasons at [80]-[86]) and concluded that as the Tribunal had complied with one of the methods prescribed by the Act of giving the invitation to the appellant, it was under no further obligation to take steps to discover if there might be some other way of communicating with the appellant.

19    The primary judge held that the decision to proceed in the absence of the appellant was not unreasonable in the sense referred to in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and distinguished the present case from Li on the facts, applying what Gaegler J had said in Li at [113], that a judicial finding of unreasonableness should be made with great caution unless there are extraordinary circumstances to warrant such finding.

20    Her Honour concluded that in the circumstances, she was satisfied that the Tribunal's exercise of its power under s 426A of the Act was reasonable and without error.

The appeal

21    The Notice of Appeal sets out two grounds of appeal. The grounds are identical in terms to the first and fourth grounds advanced before the primary judge.

22    The appellant did not file any written submissions in relation to this appeal. Nor, despite invitations to do so, did he make any oral submissions other than that the Tribunal had not properly considered his claims. I would proceed on the basis that he is relying on the same arguments advanced in the Court below. The Minister submits that for the reasons set out in the judgment of the primary judge, the grounds of the appeal are misconceived.

Ground One

23    In relation to the s 424A complaint, the Minister accepts that pursuant to that provision, the Tribunal must give an appellant, clear particulars of any information that it considers would be the reason, or a part of the reason, for affirming the decision under review. However, as the Minister correctly submits "information" for the purposes of s 424A does not include the existence of doubts, inconsistencies in the evidence, or the absence of evidence. Nor does it include "the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.": SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]. Section 424A will only be engaged where the material would be capable of being dispositive of the appellant's claims for protection: Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at 514 per French CJ, Heydon, Crennan, Kiefel and Bell JJ.

24    Moreover, again as the Minister correctly submits, s 424A does not apply to information that is not specifically about the appellant and just about a class of persons of which the appellant is a member (s 424A(3)(a)), to information that the appellant gives during the process that leads to the decision under review (s 424A(3)(ba)), or to information that the appellant gives for the purpose of the review application (s 424A(3)(b)).

25    The Tribunal noted in its decision that had the appellant attended the hearing, it would have used that opportunity to ask him about various matters, but as he did not attend, nor respond to the 18 August 2014 letter, the Tribunal only had the information contained in the materials before it from which to make a decision (at [18] of the Tribunal decision).

26    The appellant, before this Court, did not identify the 'information' he says was not put to him for the purposes of s 424A of the Act, nor is any such information apparent from the Tribunal decision record. There was no obligation on the Tribunal to put those matters to the appellant under s 424A(1) of the Act. The primary judge was correct in so concluding. As the Minister submits, absent an obligation arising under s 424A(1), there can be no failure to comply with s 424AA of the Act, which presupposes an obligation under s 424A of the Act: SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [2] per Moore J, at [80] per Tracey and Foster JJ. There being no evidence to establish any non-compliance with s 424A of the Act, there is no basis for a finding that the Tribunal breached its obligations under that provision: SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 at [38].

27    No jurisdictional error on the part of the Tribunal or any appealable error on the part of the primary judge has been established under this ground.

Ground Two

28    The ground, in substance, repeats the appellant's complaint in the Court below that the Tribunal did not have jurisdiction on the basis that "its reasonable satisfaction was not arrived at in accordance with the requirements of the Act."

29    This ground is unsupported by any particulars so as to render it meaningful. It is no more than a bare assertion which does not establish relevant error. Her Honour so found correctly. No error is made out on the part of the primary judge.

Orders

30    The appeal will be dismissed. The appellant should pay the Ministers costs.

Associate:

Dated:    9 August 2016