SZFHV v Minister for Immigration & Multicultural & Indigenous Affairs

Proceedings in the Court Below 15 By his original application for review, filed in the Federal Magistrates Court on 22 December 2004, the appellant raised the following grounds of review (with particulars), namely: (a) That the Tribunal did not observe the procedures required of it pursuant to the Migration Act 1958 (Cth) ('the Act'); (b) the Tribunal did not have jurisdiction to make the decision; (c) the decision was not authorised by the Act or the Regulations made under the Act; (d) the decision was an improper exercise of power; (e) the decision involved an error of law constituted by an incorrect interpretation or application of the law; and (f) there was no evidence or other material to justify the making of the decision. 16 By his amended application filed on 11 April 2005, the appellant raised one ground of review (with particulars), namely: 'The Tribunal did not observe procedures that were required by the Migration Act or the Regulations to be observed in connection with the making of the decision.' 17 On 23 November 2005 the Federal Magistrate heard the application. At the hearing, the appellant was represented by counsel who prepared lengthy written submissions. The written submissions abandoned a number of particulars in the amended application. 18 In respect of the grounds and particulars which remained, the Federal Magistrate found the first respondent's submissions to be correct and concluded that there was no jurisdictional error. The submissions which his Honour accepted are set out in [19] - [25] below. 19 The appellant's claims regarding the Tribunal's failure to properly consider a particular social group were misconceived for four reasons. First, the Tribunal had identified the appellant's claimed group/s. Second, the Tribunal accepted that landowners could potentially be characterised as a particular social group but did not accept that in this instance the appellant formed part of that group. Third, the difficulties with his workers arose because of perceived personal wealth rather than being a member of a group constituted by landowners. Fourth, the Tribunal rejected the constituent elements of the appellant's claimed membership of the group being Sikh farmers who are politically active. The Tribunal found that, separately and cumulatively, Sikhs and persons involved or perceived to be involved in the relevant political party were not persecuted. 20 There was no evidence that the Tribunal had failed to identify the Convention basis upon which the appellant's claims may be said to rest. 21 There was no evidence that the Tribunal had applied a balance of probability test; rather the Tribunal had set out accurately the real chance test it was required to apply. There was no evidence that the Tribunal had applied a balance of probability test or misapplied the real chance test. 22 There was no breach of s 424A(1) of the Act by failing to put the information in question (the independent country information) to the appellant as it came within the purview of the s 424A(3)(a) exception: citing Minister for Immigration & Multicultural & Indigenous Affairs vNAMW (2004) 84 ALD 325. 23 In any event, without a transcript of the hearing being put into evidence, no conclusion could be drawn that the country information was not put to the appellant. Moreover, the country information was not of a nature that was novel or that would surprise the appellant and the appellant had not put before the court a true indication of the type of material which he would have placed before the Tribunal if he had known of the country information. 24 Contrary to the appellant's claim that the Tribunal failed to consider whether discrimination suffered by the appellant could constitute persecution, the Tribunal did consider the matter and concluded that there was no evidence of the appellant being denied education or employment because he was upper caste. In any event, the Tribunal did not accept that the appellant had been discriminated against. 25 Addressing the claim that the Tribunal had failed to take into account a relevant consideration (that the appellant had travelled on a passport in another person's name), the Tribunal clearly considered the matter and, accordingly, the allegation could not be made. 26 Thereafter his Honour noted that, apart from any lack of jurisdictional error apparent in the decision, 'the real point' was the 'significant period of delay' between the decision of the Tribunal (30 October 2001) and the appellant commencing an application in the Federal Magistrates Court (22 December 2004). His Honour noted that the appellant had provided no explanation for the delay in commencing proceedings in the Federal Magistrates Court; the appellant's counsel had informed the court that he had sought from the appellant an affidavit to explain the delay but had been unsuccessful in obtaining one; it was submitted by the appellant's counsel that following the Tribunal decision, the appellant had not had sufficient funds to retain a solicitor to bring proceedings; and the appellant had not filed his application to the Federal Magistrates Court until December 2004 and thereafter had not briefed counsel until shortly before the hearing, which was very much at the 'last minute'. 27 The Federal Magistrate also noted that where an applicant's delay was poorly or unsatisfactorily explained it was open to the court to deny relief in the exercise of its discretion and that even if a jurisdictional error had been disclosed, exercising the discretion of the court he would refuse to grant relief on the basis of the substantial and unexplained delay.

The Appeal to this Court 28 The appellant commenced the present proceedings by notice of appeal filed on 13 December 2005. It contained as grounds of appeal several diverse assertions, most of which were not particularised to provide the first respondent with any informed bases of the case it had to meet. 29 On the hearing of the appeal I gave leave to the appellant's counsel to file in Court an amended notice of appeal, notwithstanding that, based on directions made on 7 February 2006, the time for filing and serving any amended notice of appeal had long passed. My disposition in this regard was influenced by the fact that a copy of the amended notice of appeal had been available to the Minister and, as late as that occurred, the Minister's counsel had sufficient time to prepare written submissions in response to the grounds contained in the amended notice of appeal. I also granted the Minister leave to file in Court a notice of contention contending that the judgment of the Federal Magistrates Court should be affirmed on two other grounds, namely: 1. The finding of the Tribunal that the appellant could avail himself of effective state protection; and 2. the appellant's delay in commencing proceedings for review of the decision of the Tribunal. 30 The appellant's amended notice of appeal contained four grounds, however, on the hearing, the appellant's counsel abandoned grounds 3 and 4 and only sought to press the first two grounds which were articulated as follows: 1. His Honour erred in not finding that the Tribunal erred in the application of the well-founded/real chance test. 2. His Honour should have found that the Tribunal erred in the identification of the appellant's social group. 31 As to the first ground, this was particularised in the appellant's amended notice of appeal as: 'The Tribunal erred as per the real chance test and as per further outlined in the submissions this failed to take into account relevant considerations and in particular employment.' 32 The appellant's written submissions made it clear that the source of this ground of appeal was the Tribunal's acceptance that the appellant was on one occasion in 1987 detained by the police and that his family needed to pay money for his release, on the one hand, and the Tribunal's non-acceptance, on the other, that the appellant was detained by the police in 1998 or 1999. The reasons why the Tribunal accepted that the appellant had been detained by the police in 1987 but not in 1998 or 1999 are fully detailed in the Tribunal's reasons. The findings, and the reasons underlying the findings, are totally factual and do not involve any erroneous application of a balance of probabilities or other test for the 'real chance' test in determining whether the appellant had a well-founded fear of persecution. On the basis of the Tribunal's finding in relation to the subsequent alleged detentions, and the country information the Tribunal referred to, it was entirely open for the Tribunal to consider, as it did, that one detention occurring some 13 years ago does not of itself give rise to a well-founded fear of persecution on returning to India now. 33 This part of the Tribunal's reasons is not infected by error of law, let alone jurisdictional error and for that reason the ground cannot be sustained. 34 The second ground, that the Tribunal erred in the identification of the appellant's social group, is equally flawed. The Tribunal acknowledged the appellant's claim that he had been subject to persecution because he is a Sikh, because he is associated with the Akali Dal Party and because he is a landowner. The Tribunal accepted that the appellant is a Sikh in terms of his ethnic group and that his family was associated with the Akali Dal Party. The Tribunal also accepted that landowners may potentially be characterised as a particular social group but did not accept that in this particular case the appellant does form part of a particular social group - landowners. The Tribunal considered that the appellant's difficulties with his work arose from the fact that he is a person who has some personal wealth and not because he was perceived to be a member of a particular social group such as landowners. The appellant's submission that the Tribunal failed to properly identify this social group - that he belonged to a particular group of Sikhs who are farmers and are politically involved - flies in the face of the Tribunal's findings. Moreover, the subsequent submission '… that the Tribunal proceeded to make general assessment against general population of people of the state of Punjab rather than his particular social group' equally has no foundation. The Tribunal did not do that and the court below was entirely justified in dismissing this ground of appeal as it was agitated below. 35 The Minister submitted that there is no jurisdictional error manifest and the decision is a privative clause decision for the purpose of s 474 of the Act: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. 36 The Minister also submitted that even if the Court were to take a contrary view, the Tribunal's decision contained a separate and independent basis, namely the Tribunal's finding that the appellant could avail himself of effective State protection. Accordingly, this would have been a sufficient basis for the withholding of relief: See SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 per Allsop J at [233]. 37 In addition, the appellant has failed to demonstrate any error in the Federal Magistrate's exercise of the court's discretion in denying relief (irrespective of whether there was jurisdictional error in the decision of the Tribunal) on the basis of the unexplained and unwarrantable delay of the appellant in commencing judicial review proceedings in respect of the Tribunal's decision: House v R (1936) 55 CLR 499. In any event, the Minister submitted that this Court also has the requisite discretion to refuse such relief, given the lengthy and (still) unexplained delay of the appellant of over three years.

USE of the information in the protection visa application 38 As both the Tribunal and the Federal Magistrate did not have the benefit of what the Full Court held in SZEEU, it is also necessary to consider whether the Tribunal's use of information in the appellant's application for a protection visa amounted to a breach of s 424A of the Act. 39 The Tribunal used information provided by the appellant in his protection visa application to identify an inconsistency in his evidence about his being detained a second time in 1999. Section 424A of the Act obliged the Tribunal to give particulars of that information to the appellant: Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27; SZEEU. Plainly, the inconsistency was the focus of a part of the hearing before the Tribunal and was also addressed by the appellant's adviser in his post-hearing submission. However, there is no material in the appeal papers which would suggest that the Tribunal complied with the requirements of s 424A(1) by giving particulars of that information to the appellant in writing: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162. It appears, therefore, that the Tribunal failed to comply with s 424A of the Act. 40 However, even if the Tribunal failed to comply with s 424A, its decision should nevertheless be upheld because its findings about effective State protection provide, as indicated above at [36], an independent basis for the refusal of relief.

Conclusion 41 The appellant has not demonstrated any error that would lead to the conclusion that the court below or the Tribunal failed to exercise or exceeded its jurisdiction or any entitlement to relief. There is, at the very least, an independent and unimpeached basis for refusal of relief, namely, a finding of effective State protection. 42 In any event, the unwarrantable and insufficiently explained delay, on the part of the appellant, in commencing proceedings is sufficient to justify the withholding of relief in the exercise of discretion.

43 In the circumstances, the appeal must be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate: Dated: 14 July 2006 Counsel for the Appellant: Mr A Kumar