BZAAG v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The applicant is a citizen of the Republic of India. He came to Australia on 13 February 2008. Almost two years later, on 1 February 2010, he applied to the Minister for Immigration and Citizenship, the first respondent to the proceeding today, for the grant under the Migration Act 1958 (Cth) (Migration Act) of that class of visa known as a Protection Visa. A Delegate of the Minister refused that application on 22 March 2010. Thereafter, as was his right, the applicant sought the review of the minister's delegate's decision by the Refugee Review Tribunal (the Tribunal) on the merits. 2 The applicant did not attend the hearing that the Tribunal offered to conduct. The Tribunal, as it was empowered to do, proceeded to consider the merits of the review application on the material that it had before it: see s 426A of the Migration Act. On that material the Tribunal was faced with a claim by the applicant that he had lived in the Punjab from the time of his birth there in 1988 until he came to Australia in 2008. He stated in his Protection Visa application that he was a Sikh. He made reference to an interest in the welfare of Sikhs and to his having sympathised when a student with the Shiromani Akali party, which is based at Amritsar in the Punjab. That party, so his application related, had helped the Khalistan movement when it was at its peak. The party, so he stated in his application, now worked underground. 3 The applicant made reference in his application to what he described as the "army operation" on the Golden Temple in the Punjab. This, he stated, was a great shock to Sikhs all over the world. He further made reference to mass killings and arrests of Sikhs that had followed that event and also the assassination of the then Prime Minister of India, Mrs Indira Gandhi. These events included, so his application stated, the killing of many of his relatives, including his uncle. Though they had occurred prior to his birth, his application stated that it had become clear to him that Sikh holy places were at the mercy of the authorities and people of other religions. For this reason, he had become a supporter and member of the party and an important one at that, according to his application. That, he stated, had led to his arrest, along with colleagues. He stated that he and they had been badly treated by police. He stated that he had been warned that they would be monitored and face serious consequences if they were to participate in politics. Against this background he stated in his visa application that he had had no alternative but to leave India. There was, he stated, a real chance that he could have been killed by the authorities by reason of his political opinion. 4 The Tribunal, like the Minister, was not bound uncritically to accept the account made in a visa applicant's application of the circumstances upon which the application was grounded: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596. In his reasons, at paras 29 to 33, the Tribunal member highlighted why he had "significant problems" with the applicant's claims. In particular, the Tribunal member made reference to the vagueness and generality of the claims in the visa application. 5 The upshot was that the Tribunal was not, on the face of the material before it, satisfied that the applicant was a person to whom Australia had a protection obligation under the Refugee Convention. That being so, a necessary criterion for the grant of a Protection Visa was not met. In assessing the application it is apparent from the Tribunal's reasons that the member concerned addressed the statutory criteria in respect of the grant of a Protection Visa as well as further criteria set out in the Migration Regulations 1994 (Cth). 6 On this basis the Tribunal affirmed on 1 July 2010, a decision of the Minister's Delegate not to grant a Protection Visa. The applicant then sought the judicial review of the Tribunal's decision by the Federal Magistrates Court. He did so on two grounds set out in the application filed in that court. They are: 1 that the applicants case was not assessed as per the directions laid down by the handbook of the UNHCR, rather a different formula was laid down by the respondents. The applicant has satisfied criterion as required by the law laid down by the UNHCR, the applicant has fulfilled the key elements of being a refugee, the RRT has failed to address the legal issues, as such there is a error of law. The various authorities quoted in the decision of the RRT are not applicable to the applicant. 2 That the applicant satisfied the requirements as laid down in s 36(2)(a) of the criterion as laid down, there has been a misreading of the law, which has led to the jurisdictional error. The RRT has failed to consider the evidence per the law inforce for the determination of the refugee status, hence therefore there is a breach of law. This amounts to the error of law and the jurisdictional error is clear in the orders of the respondent number two RRT. [sic] 7 Upon the application being filed by the applicant in the Federal Magistrates Court the application was assigned a date and time for a directions hearing. That date and time was 9.30 am on Thursday 2 September 2010. The place nominated for the holding of the directions hearing, as inserted into the review application, was Level 1 in the Commonwealth Law Courts building in Brisbane. 8 As it transpired, the applicant did not attend at that time, date and place. Accordingly, on 2 September 2010, and for the reason that the applicant had not appeared on the first court date of the proceeding, the Federal Magistrates Court dismissed the application pursuant to r 13.03C(1)(c) of the Federal Magistrates Court Rules. That court also fixed a sum in respect of costs. The applicant then lodged in this Court on 22 September 2010 a document in form 55, which is the form appropriate for a notice of appeal. In that document, under the heading Grounds of Appeal, he stated this: 1 That the appellants date for direction was fixed on 02/09/2010, the appellant was under gross misunderstanding that the date of hearing was on 03/09/2010, this mistake was not deliberate nor intentional. When the appellant was going through his papers as to the date of direction hearing, it was revealed that the date for direction hearing is fixed on 02/09/2010. The appellant immediately rushed to the court. The staff at Federal Court told the appellant that he should come on the next day ie 03/09/2010 as the staff has already left. The appellant immediately went to the court on 03/09/2010 as directed. The staff handed over the appellant the broachers as to how the appellant has to apply for the appeal/reset of the matter, as such, in accordance with the instructions the appellant is applying on the Form 55 as it is also given on the broachers of the court. 2 That the Appellants submits that this fact that the appellant is self-represented, the appellant has no legal assistance, as the appellant is without work, and has no source of income to pay the amount to the solicitors, the applicant is already being supported by his relations. The appellants non-attendance on 02/09/2010 was not at all intentional nor it was deliberate, had this be the case, the appellant immediately rushed to the honorable court on the same day, but unfortunately, the concerned staff was not there, and on the next day on 03/09/2010 the appellant was given the broachers as to how to apply as submitted above. Had there been any deliberate non-appearance, than how the appellant rushed to the court as submitted above. The appellants innocence is clear from these circumstances, this application is also being prepared by one of the applicants family friend. 3 That the appellant has an arguable case, there are many legal and otherwise jurisdictional errors. The applicant/appellant shall be deprived off his valuable right, of being non-heard in this matter. The appellant requests that the matter of the appellant may kindly be heard to meet the interest of justice. There may occur an act of injustice if the appellants case is not heard. [sic] 9 Against this background the Minister filed a Notice of Objection to Competency. The basis of the objection was that the judgment of the Federal Magistrates Court of 2 September 2010 was interlocutory. Accordingly, objection was taken on the basis that there was a requirement under the Federal Court Rules for there to be a grant of leave. In the absence of a grant of leave, the appeal, so the objection recorded, was not competent. It was also noted, in the objection that there had been no request by the applicant for an extension of time in which to apply for leave to appeal. 10 Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act) provides that an appeal shall not be brought from a judgment referred to in subs (1), that is an interlocutory judgment, unless the Court or a Judge gives leave to appeal. One of the judgments referred to in s 24(1) is a judgment of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth (other than certain specified statutes, none of which are presently material): see s 24(1)(d). 11 For reasons which will become apparent, it is also necessary to have regard to the definition of "judgment", which appears in s 4 thus: Judgment means: (a) a judgment, decree or order, whether final or interlocutory; or (b) a sentence; and includes a conviction. 12 Upon the application coming on for hearing today and the contents of the notice of objection being appreciated by the applicant, he made application orally for the grant of leave to appeal and for such related extension of time as may be necessary in that regard. 13 Order 52 r 5 of the Federal Court Rules provides: (1) This rule applies only to applications where an appeal from the judgment lies to the Court only with leave. (2) An application shall be filed within 21 days after: (a) the judgment was pronounced; or (b) a later date fixed for that purpose by the court or judge who pronounced the decision. (3) Where an application is not filed within the time limited by subrule (2), an order shall be sought in the application that compliance with subrule (2) be dispensed with. 14 The Minister quite properly in the prevailing circumstances of an applicant who was, though literate in English, unrepresented and unfamiliar with the detail of the Court's practice, did not take objection to the informality of the oral application which the applicant made. 15 I was not prepared to act on the basis that the Notice of Appeal, insofar as it related facts, should just be accepted on its face without being verified by oath or affirmation as to the factual basis of the application. Particularly that was so as the Minister, by his counsel, signified a desire to cross-examine the applicant with respect to the factual foundation of the application for leave to appeal and related extension of time. That being so, the applicant signified a willingness to give oral evidence verifying, by reference to his Notice of Appeal, the correctness of the facts that he related in the notice of appeal. 16 An interesting point of practice and procedure then emerged. The applicant confirmed that he was an adherent to the Sikh faith upon being asked whether he wished to make an oath or an affirmation. I then adjourned the proceeding for a short time so as to investigate whether it would be practical to administer a form of oath appropriate to the applicant, given his stated adherence to the Sikh faith. 17 In the time available it was possible to ascertain, by reference to English authority, a form of oath that had been in that country used where members of the Sikh religion had to give evidence in court proceedings. In R v Moore (1892) 8 TLR 287 reference is made, at 287, to a Sikh who informed the court that in India he could be sworn on a book called the Granth. A need for that same holy book to be used in respect of the administration of an oath to an adherent to the Sikh religion is referred to also in R v Pritam Singh [1958] 1 All ER 199. 18 The latter case is of interest also in that it discloses a failure of a perjury charge on the basis of the law with respect to oaths in the United Kingdom as it then stood. It transpired in that case before the Magistrates Court that it had not been practical to administer to the person later charged with perjury an oath on the Granth according to the Sikh religion. That being so, the magistrate had directed the affirmation of the witness. The perjury charge failed on the basis that the law, as it then stood in that country, did not admit of that alternative in that circumstance, but only where a person professed no religious belief. 19 The position in this Court is governed by Div 2 of Pt 2.1 of ch 2 of the Evidence Act 1995 (Cth) (Evidence Act). Within that division the following are material provisions: 21(1) A witness in a proceeding must either take an oath or make an affirmation before giving evidence. 23(1) A person who is to be a witness in a proceeding may choose whether to take an oath or make an affirmation. (2) The court is to inform the person that he or she has this choice. (3) The court may direct a person who is to be a witness to make an affirmation if: (a) the person refuses to choose whether to take an oath or make an affirmation; or (b) it is not reasonably practicable for the person to take an appropriate oath. 24(1) It is not necessary that a religious text be used in taking an oath. 20 It seems to me that the Evidence Act, in this regard, does provide a comprehensive code in respect of the position with respect to oaths or affirmations in this Court. Even if, though, one were to take the view that there was some residual operation for the application, via s 79 of the Judiciary Act 1903 (Cth), of the law of Queensland, as found in the Oaths Act 1867 (Qld) (Oaths Act) with respect to the administration of oaths, the position would not be in any way materially different. That is so because, in s 39 of the Oaths Act, one finds similar reference to the ability to affirm in circumstances where it is found to be impracticable at the time and place concerned, to administer to the person a form of oath in the manner required by that person's religion. 21 It can be seen that s 23(3)(b) of the Evidence Act and s 39 of the Oaths Act are remedial, in the sense that they expressly address the gap in the law of oaths exposed in R v Pritam Singh. 22 Whether or not it is appropriate, in respect of an adherent to the Sikh religion, to administer an oath on the Granth is, I think, moot. In Weinberg M, "Law of Testimonial Oaths and Affirmations" (1976) 3(1) Monash University Law Review 25, Mr Mark Weinberg (as His Honour then was) at 33 footnote 28 states: It seems that Sikhs do not regard their scripture the Guru Granth Sahib as a holy book outside the temple. A Sikh would not regard a Granth produced to him in court as being particularly binding on his conscience. The Punjab High Court has ruled that on no account may a Granth even be brought into court. In England Sikhs are still often asked to take an oath on this book. 23 A similar view is expressed in "Oaths of Hindu, Sikh and Mohammedan Witnesses" [1972] 136 JP 831 at 832: Sikhs are often asked to take an oath which involves the use of their scripture, the Guru Granth Sahib. The Granth to the Sikh, is a personification of the Guru. Outside the temple it is not a holy book, and in any case only the priest is allowed to touch it. The Sikhs do not regard the Granth produced to them in court as having any effect upon their consciences, particularly as those who have possession of the Granth in court do not have the capacity to give it a holy quality. Rules of many Indian and Pakistani High Courts and in particular the Punjab High Court provided that on no account should the Guru Granth Sahib be brought into court. The better view is, therefore, that a Sikh should not be sworn on the Granth but should be affirmed. 24 When asked, in relation to the taking of the oath today, about the Granth the applicant made reference to the Golden Temple. It may be in that reference that there is some corroboration of the statements in the journal articles which I have mentioned that the Granth is not appropriate for use outside the Temple. In the final result though, it was not necessary today to reach a concluded view on that subject. That was because, notwithstanding a diligent search of the library, it was not possible to locate a copy of the Granth, nor for that matter, to obtain within any reasonable time today, a copy of the Granth. 25 Upon that being signified, after resumption, to the applicant he indicated a willingness to make an affirmation and I directed him so to do. Upon his being affirmed the applicant then adopted the correctness of the statements of events as found in the notice of appeal quoted earlier. He was cross-examined on behalf of the Minister and confirmed that the date of the directions hearing had been placed on the application which he filed in the Magistrates Court while he was there. He also confirmed that he had just made a mistake in relation to when he ought to attend at that court. 26 In terms of the basis upon which an extension ought to be granted the applicant made reference to the grounds of review as providing a basis upon which he ought to be permitted to advance his case. He also made reference to the error which he had made in attending at the Federal Magistrates Court. 27 The Minister drew attention, in submissions, to a question as to whether the proceeding was one within jurisdiction. Attention was directed to the following passage in MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 where Young J at [9] stated: The appropriate course for the applicant to adopt would have been to apply to have the decision of O'Dwyer FM set aside pursuant to r 16.05(2), rather than appealing in this court. It has been doubted, in any event, whether this Court can entertain an appeal for a decision to dismiss an application for want of appearance: see the judgments of Sundberg J in MZWIK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 185 and VOAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1505. 28 That particular view, or doubt, was shared by Flick J in SZOBU v Minister for Immigration and Citizenship [2010] FCA 568 at [22]. 29 Sundberg J's judgment in VOAQ is reported: VOAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 224 ALR 460. Regard to paragraph 10 of VOAQ confirms the aptness of the citation made by Young J in MZWXC. It also discloses that the root authorities for the proposition advanced by Sundberg J are two Victorian decisions, Crotty v Clark (1896) 22 VLR 594 (Crotty) and an earlier decision of that same year, Brown v Fraser (1896) 22 VLR 22. 30 In Crotty, a preliminary objection was taken that an appeal did not lie from an order dismissing an action where one party did not appear. 31 The Full Court held that the objection was good but signified that it would enlarge time for an application to set aside the judgment. 32 It is, with respect, salutary to recall that the question of this Court's jurisdiction to entertain an appeal is to be found not in the practice and procedure of the Supreme Court of Victoria in the 19th century, but rather as set out by Parliament in s 24 of the Federal Court of Australia Act. It is not necessary, in this case, to reach a concluded view on the subject. However, when one has regard to the definition of "judgment" in the Federal Court of Australia Act there is, at least, a reasonable argument to be made that any interlocutory order of the Federal Magistrates Court may be the subject of an application for leave to appeal. 33 I do not, therefore, propose to decide this case on the basis that there is no jurisdiction to grant the application made by the applicant for leave to appeal and a related extension of time. 34 That, in turn, leads to something of a dilemma. As was highlighted on behalf of the Minister, the grounds specified in the notice of appeal do not in terms engage with whether or not there was any error on the part of the Federal Magistrate in dismissing the judicial review application on the basis of non-appearance. Rather, what they do is to provide an explanation which, if accepted, may well provide a basis upon which another court would choose to set aside a judgment given in default of appearance. In other words there does not, to me, appear to be any reasonable basis for appealing against a judgment which was given within jurisdiction against a background where an applicant for judicial review failed to attend before the Court. Rather, the order made by the learned Federal Magistrate seems, to me, to be one that was reasonably open on the facts which were before his Honour. Those facts were none other than an applicant who had not appeared on the day appointed for the first directions hearing. 35 It is probably as well to dispose of the proceeding today on that basis, rather than venturing into whether or not there is substantively any merit in the judicial review application. So to do may well be thought to usurp a function which is a matter for the exercise of the original jurisdiction of the Federal Magistrates Court in the event that that court were disposed, should an application be made, to reopen the proceeding. 36 It is necessary to observe this, however, in respect of one proposed ground of review, No 1, the United Nations handbook for refugees is not a document which is specified in the Migration Act as a touchstone for the grant of a protection visa, rather it is the convention itself to which reference is made. Of course, in certain cases, it can be of assistance to have regard to a document such as the handbook, but it is no substitute for the provisions of the Migration Act itself. 37 I expressly refrain from passing any other comment upon the prospects which the applicant might have were he to choose to seek to reopen the proceedings in the Federal Magistrates Court. It is, in my opinion, sufficient to dispose of today's proceeding. To reach a conclusion, that the order made by the learned Federal Magistrate is not, in the circumstances of non-appearance, attended with sufficient doubt to warrant a grant of leave to appeal or any related extension of time. 38 I propose to treat the document termed a Notice of Appeal as if it were an application for leave to appeal and a related application for extension of time, and have so done, to dismiss that application. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.