SZIKW v Minister for Immigration and Multicultural Affairs

Federal Court of Australia|2006-11-03|Before: Mansfield J

INTRODUCTION 1 The applicants are husband, wife and daughter. On 27 February 2006, they filed an application under r 44.05 of the Federal Magistrates Court Rules seeking an order that the respondents show cause why orders should not be made in exercise of that Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) (the Act) to set aside a decision of the Refugee Review Tribunal (the Tribunal) given on 21 February 2006. The Tribunal had affirmed a decision of a delegate of the respondent refusing to grant the applicants a protection visa under the Act. 2 A Federal Magistrate dismissed the application on 19 April 2006: SZIKW & Ors v Minister for Immigration & Anor [2006] FMCA 564) (SZIKW). 3 By notice of appeal filed on 5 May 2006, the applicants purported to appeal from the orders and judgment of the Federal Magistrate. 4 As the orders of the Federal Magistrate were interlocutory, the applicants require leave to appeal. That is because the application before the Federal Magistrate was listed for a hearing under r 44.12 of the Federal Magistrates Court Rules to determine whether the application raised an arguable case for the relief claimed. The application before the Federal Magistrate for an order to show cause was dismissed on the basis that it failed to disclose an arguable case: SZIKW at [5]. As those orders were made in the exercise of discretionary powers under rules 44.11 and 44.12 of the Federal Magistrates Court Rules the orders are interlocutory and the applicants require leave to appeal: s 24(1A) Federal Court of Australia Act 1976 (Cth). 5 Accordingly, the notice of appeal is incompetent. The respondent filed a notice of objection to competency of the appeal on 24 July 2006. I determined to treat the notice of appeal as an application for leave to appeal, and if leave to appeal were granted, to hear the appeal instanter. The parties' contentions therefore addressed both the application for leave to appeal, and the putative appeal.

THE CLAIMS AND THE TRIBUNAL'S REASONS 6 The male applicant and his family are Indian citizens. They applied for a protection visa under the Act on 22 September 2005 soon after they arrived in Australia on visitor visas. The male applicant is a Hindu. His wife was a Muslim from Bangladesh who became a Hindu after the marriage. The male applicant and his wife were married on 23 April 2002, and their child was born on 12 May 2002. 7 The Tribunal identified the applicants' claims to fear harm as follows: that due to the applicant husband's support for the Congress Party, he and his wife have been harassed by local BJP and other party supporters, and he fears that should he return to India, such harassment would continue; that because the applicant wife converted from Islam to Hinduism, they have been harassed by Hindu fundamentalist organisations, who have threatened to kidnap their daughter; and that because of the religious conversion of the applicant wife, her parents will send hired assassins from Bangladesh to kill them; that because their daughter was born soon after their marriage, people find their pre-marital behaviour unacceptable and have made their lives intolerable and unsafe; that the local police are unwilling to assist them due to pressure from those in higher authority. It was not submitted that the Tribunal misunderstood the applicants' claims. 8 The Tribunal did not accept those claims because it concluded that the applicants were not credible. They had lived in the same house in Calcutta for over three years since their marriage and until their departure for Australia. It thought they would have experienced some confirmable adverse behaviour, beyond the reported taunts, had their reported fears had any substance. In addition, the Tribunal accepted independent evidence that the West Bengal government prides itself on its secular tolerance, that the BJP and Hindu extremists had been rejected at both state and national elections, and that Indians have freedom of movement so the applicants could have moved elsewhere in India if they had felt threatened as they reported. In any event, the Tribunal did not accept the claims that the applicants had been subjected to daily taunts for having had a pre-marital pregnancy over three years ago. It also added that, if that conduct had been experienced, the Tribunal did not consider it of such severity as to amount to persecution. The Tribunal expressly rejected certain claims. It regarded as fanciful, and did not accept, that the applicant wife's family would or could send contract 'killers' from Bangladesh to India to harm the family and that the Indian authorities would do nothing to protect the family. And finally, the Tribunal also found that it was reasonable for the applicants in their circumstances to relocate within India, such as to New Delhi, where the Congress Party is in power and where they could live and work.

THE PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT 9 In my view, the application to the Federal Magistrates Court for an order to show cause why the Tribunal's decision should not be quashed was merely assertive and lacked any particularity. The application claimed the Tribunal 'mixed up many facts', concentrated on particular facts and ignored others, and erred in not believing the applicant. It also claimed that the Tribunal did not approach its review with an open mind, made its decision in bad faith, and had deprived the applicant of natural justice. It was an uninformative document. The applicants' affidavit supporting the application was equally assertive and uninformative.

10 The inadequacy of those materials was pointed out to the applicants by the learned Federal Magistrate at a directions hearing. They were given an opportunity to redress them by adducing further evidence, if so advised, or by adding particularity to the application, or both. As it stood, there were simply bold general assertions. The applicants did not take up that opportunity, although they apparently filed written submissions (which the Federal Magistrate described also as "formulaic in nature") shortly before the hearing. The applicants were represented at the hearing by the applicant father and he also made oral submissions. 11 On the material, the Federal Magistrate concluded that the application for an order to show cause failed to disclose an arguable case, and dismissed the application.

THE PROPOSED GROUNDS OF APPEAL AND THEIR CONSIDERATION 12 The proposed notice of appeal is also uninformative. It complains of the learned Federal Magistrate's failure to "find error of law, jurisdictional error procedural fairness and relif [sic] under section 39B of the Judiciary Act 1903". It asserts that the Federal Magistrate did not consider the application. That is patently incorrect. It asserts that the Federal Magistrate did not allow the applicants enough time to prepare their submission. As noted in fact, they did make a submission both in writing and orally at the hearing. It then says that further grounds of appeal will be provided after the reasons for judgment become available. 13 No such grounds were provided, even though the "notice of appeal" was filed nearly six months ago. 14 On 23 October 2006 the applicant filed a written submission asserting the grounds of appeal. They too are formulaic and unhelpful. The applicant father also appeared at the hearing of this application and made submissions on behalf of the family. He professed to having been the author of that document (with assistance from another person only in transcribing it), but he could not explain it at all. It appears to have been written by someone with a partial but inadequate knowledge of the relevant law. 15 The written submission complains that the Tribunal did not follow procedures required by the Act. The only statutory procedures specified, and the only one which the applicant father could identify when questioned, was s 66(1) of the Act. That section addresses the means by which the first respondent or her delegate should notify a visa applicant of the results of the protection visa application. It does not apply to the Tribunal. Then the submissions assert a breach of the rules of natural justice. Putting aside the effect of s 422B of the Act, the applicant father was unable to indicate what breach of the rules of natural justice is alleged to have occurred. He simply said he was not given a proper judgment; that is he did not agree with the result. The written submission further claims that the Tribunal asked itself the wrong question, but the applicant father was unable to identify that error in any way at all. It is plain from its recital of the applicable law, and generally from its reasons, that the Tribunal correctly identified and addressed the question which s 36(2) directs. 16 The next section of the written submissions complains that the Tribunal did not use the country information properly, and did not consider certain country information provided by Amnesty International. There is no evidence that any relevant country information from Amnesty International was provided to the Tribunal either by the Secretary under s 418 of the Act or by the applicants, or was otherwise before the Tribunal. There is no evidence as to the content of any information from Amnesty International. The applicant could not further explain how that submission could assist in demonstrating jurisdictional error on the part of the Tribunal. It does not do so. 17 The written submissions also complain of "error of law" and "jurisdictional error", which upon inquiry were said by the applicant father to relate to the ignoring of relevant evidence and to demonstrate actual bias on the part of the Tribunal. The applicant father was unable to identify in the material before the Court what that relevant evidence was that was ignored. In the course of his oral submissions, he referred to two letters, one from the Commissioner of the Congress Party and the other from his mother. They are not in the appeal book and are not shown to have been in evidence before the Tribunal. They are not now before the Court. The Tribunal's reasons refer to the applicant having said that he had in his possession two letters, one from a member of the Congress Party advising him that it was not safe to return to India because of "opposition parties", and the other from his mother who said that the family could not stay in Calcutta because of family opposition. As noted, there is nothing in the material before the Court to indicate that those two letters were in fact put in evidence before the Tribunal, and its reasons do not indicate that they were. In any event, the recital of their contents by the Tribunal indicates that it was aware of their existence and made its findings despite them, rather than that it overlooked them. As an assertion of actual bias was made in the submission, it is appropriate to record that, in my view, there is nothing in the material before the Court which suggests at all that the Tribunal approached its task with a closed mind, or with a mind disposed to rejecting the application so that it did not consider the application on its merits. Nor is there anything to suggest that in any way it conducted itself so as to give a reasonable person any indication that it may not approach its task with an open mind. 18 The written submission also seeks to activate s 424A by asserting a failure on the part of the Tribunal to give the applicant notice of relevant adverse information. In fact, when questioned, the applicant father did not understand what "adverse" means. Upon further questioning, he was unable to identify any piece of information which properly attracted the operation of s 424A and which he contended should have been notified to the applicants for comment before the determination of the Tribunal. I have reviewed the Tribunal's reasons. I did not discern any such information. 19 The remainder of the written submission is repetitive of those very general claims. None of them lead me to the view that the Tribunal committed jurisdictional error, whether considered on the face of the written submission or with such additional (but very limited) explanation and submissions the applicant father was able to give. 20 In the course of oral submissions, the applicant father also asserted that, in the course of the hearing before the Tribunal, he was not permitted to give oral evidence properly and the interpreter was inadequate. That matter was not a ground in the application for an order nisi to quash the Tribunal's decision made to the Federal Magistrates Court, nor in the notice of appeal. There is also no evidence to support the assertion. For those reasons, those unsupported assertions cannot demonstrate jurisdictional error on the part of the Tribunal. There was no application for an adjournment by the applicants to present further evidence. Nor was there any application to amend the "notice of appeal".

21 At one point the applicant father complained of not having had sufficient time to have presented such evidence as he wished to present on the appeal. When it was pointed out to him that his notice of appeal of 5 May 2006 anticipated such further material and that a significant time had elapsed since then, he did not develop that point. He did, however, repeat the claim that the applicants did not have sufficient time to prepare submissions or other material for the hearing before the learned Federal Magistrate. Unlike the circumstances addressed by Black CJ in MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1075, the applicants were notified by the Federal Magistrate that a hearing would take place to determine whether there was any arguable merit in his application. They were informed that the material then before the Court may be inadequate to support the existence of an arguable case. They were given 18 days within which to file such further evidence or particularity as they were advised. They only filed further submissions which, as observed above, the Federal Magistrate described as formulaic. 22 The applicants made one further unsupported and fresh claim in the oral submissions on the appeal, namely that the applicant wife would face "push back", i.e. be returned to Bangladesh, if the family returns to India. That claim was not made to the Tribunal or in the application for a protection visa. The failure to address it could not therefore demonstrate jurisdictional error on the part of the Tribunal. 23 Otherwise, the applicants' oral submissions simply asserted certain of the claims made to the Tribunal and that the Tribunal's conclusion on the facts was erroneous. That the applicants consider that the Tribunal reached the wrong decision does not itself demonstrate jurisdictional error. The Tribunal explained why it reached that decision, and it did so on the basis of cogent material available to it. 24 In my view, if leave to appeal were given, there would be no merit in the proposed appeal. That is a sufficient reason to decline to grant leave to appeal. Nor is there any error shown in the exercise of the discretion by the learned Federal Magistrate to dismiss the application in the circumstances with which his Honour was then confronted. 25 The application for leave to appeal is therefore refused. There has been no formal order joining the Refugee Review Tribunal as a respondent, and I so order. I anticipate that it would have taken no part in the proceedings, other than to abide any order. The first and second applicant should pay to the first respondent her costs of the application. The first respondent did not seek an order for costs against the third applicant, who is an infant, and in respect of whom a guardian ad litem had been appointed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Applicants: The First Applicant appeared in person for the Applicants.

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