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[2008] FCA 161
Federal Court of Australia
2008-02-26
McKerracher J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an appeal against a decision of a Federal Magistrate (Cameron FM) made on 22 October 2007 (SZKDL & Anor v Minister for Immigration & Anor [2007] FMCA 1806) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 23 January 2007. 2 The appellants are citizens of India. They arrived in Australia on 19 June 2006. On 28 June 2006 the appellants lodged an application for protection visas with the Department of Immigration and Multicultural and Indigenous Affairs (as it was then known). A delegate of the first respondent refused the application for protection visas on 15 July 2006. On 11 August 2006 the appellants applied to the Tribunal for a review of that decision. 3 The appellants, who are from Gujarat, are a husband and wife aged 38 and 36 years respectively. Only the appellant husband made claims under the Convention Relating to the Status of Refugees 1951 and amended under the Protocol Relating to the Status of Refugees 1967 (the Convention) with the appellant wife relying on membership of his family unit. As only the appellant husband made claims to a fear of persecution, he will be referred to as the appellant.
THE TRIBUNAL'S DECISION 4 In his application for a protection visa, the appellant claimed to have a well-founded fear of persecution based on his religion and political opinion as a member of a Hindu organisation, Shiva Sena (SS) and a supporter of the Bharatiya Janata Party(BJP). He claimed that he actively campaigned against the Congress Party. 5 Before an election an extremist Muslim leader came to his house with his goondas (thugs) asking him to support the Congress Party candidate and threatening that if the Congress Party did not win the election his family would be in trouble. After the BJP won the election he was told to leave the city and pay money otherwise he would be killed. He and/or his family hid, but they were found, so he arranged to come to Australia. He claimed his life would be in danger if he returned to India. 6 At the hearing before the Tribunal he claimed that his shop was burnt and looted and his life ruined as a result of the 2002 Muslim-Hindu riots and he had to leave his house. 7 The Tribunalwas not satisfied that the appellant was a credible witness due to his lack of knowledge of the SS and the elections; inconsistent evidence; vague and general evidence about the circumstances surrounding his hiding; and the delay between the 2002 riots and the time he left home and closed the business. 8 The Tribunal also noted that independent country information showed violence had decreased following the 2002 riots in Gujarat and Muslims were in the minority and more likely to be harmed than Hindus in Hindu dominated areas such as Gujarat. The Tribunal therefore found that the appellant had never been an SS member and had not been threatened or been harmed as a result of the riots. Indeed, the Tribunal specifically concluded that the appellant was not a credible witness, that his claims had been invented and the chance that he would be persecuted in the future in the course of any riots due to any inter-religious tension or by Muslims for reasons of religion was remote.
THE FEDERAL MAGISTRATE'S DECISION 9 On 6 February 2007 the appellant sought judicial review in the Federal Magistrates Court. Before the Federal Magistrate the appellant claimed in his amended application that the Tribunal's decision was not made in good faith and breached natural justice. The appellant also claimed that the Tribunal failed to exercise its jurisdiction and made a jurisdictional error as it erred in its consideration of relocation, failed to give proper and adequate reasons, and failed to consider all claims before it. 10 Section 430(1) of the Act provides: (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based. 11 His Honour found that 'the Tribunal endeavoured to conduct a full and fair review' and gave the appellant the opportunity to give evidence and present arguments. The Federal Magistrate found no breach of the Tribunal's duty to give reasons under s 430 of the Migration Act 1958 (Cth) (the Act) and noted that its findings were 'logical and cogent'. Further, his Honour found the Tribunal considered all the claims except for State protection which it was not required to do in light of its findings that the appellant had not been a member of SS, had not campaigned for any BJP candidate in any election, did not go into hiding due to threats, had not been seriously affected by the 2002 riots and was not a credible witness. The Tribunal found his claims had been invented. 12 During the hearing the appellant raised two further grounds, firstly that the Tribunal failed to consider a photograph and failed to consider documents written in Gujarati. His Honour noted that the Tribunal did consider the photograph but found that it did not support the appellant's claims. In relation to the documents, his Honour noted that the Tribunal had no obligation to translate documents, but even if it did, no translation was provided to his Honour to show whether the lack of consideration amounted to jurisdictional error. 13 The second matter raised at the hearing was that the appellant did not have the opportunity to present the evidence in the Gujarati documents because he was only initially given two weeks to translate the documents, although the appellant conceded that the Tribunal then gave the appellant a further two weeks after the hearing to translate the documents. His Honour found that this did 'not amount to an inability to present evidence for which the Tribunal was responsible'.
GROUNDS OF APPEAL 14 It is to be noted that the appellant directed his initial grounds of appeal to the determination of the Tribunal rather than the decision of the Federal Magistrates Court. Subsequent submissions on the latter decision are dealt with below. 15 In the notice of appeal filed on 5 November 2007 in this Court, the appellant raised the following grounds of appeal:
Ground 1 - Jurisdictional error in determining relocation as reasonable and feasible 19 As framed, this ground does not identify an error of law. In H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 at [6], the Full Federal Court stated: An appeal to this Court from a decision of a judge of the Court is an appeal in the strict sense and not an appeal by way of rehearing (Dynasty Pty Ltd v Coombs (FC) (1995) 59 FCR 122 at 129; White v Minister for Immigration & Multicultural Affairs [2000] FCA 232). The appeal power is thus to be exercised for the correction of errors (Coal and Allied Operations Pty Ltd v The Full Bench of the Australian Industrial Relations Commission [2000] HCA 47 per Gleeson CJ, Gaudron and Hayne JJ at para 21). 20
NEW SOUTH WALES DISTRICT REGISTRY NSD 2180 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
JUDGE: MCKERRACHER J DATE OF ORDER: 26 FEBRUARY 2008
NEW SOUTH WALES DISTRICT REGISTRY NSD 2180 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
REASONS FOR JUDGMENT 1 This is an appeal against a decision of a Federal Magistrate (Cameron FM) made on 22 October 2007 (SZKDL & Anor v Minister for Immigration & Anor [2007] FMCA 1806) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 23 January 2007. 2 The appellants are citizens of India. They arrived in Australia on 19 June 2006. On 28 June 2006 the appellants lodged an application for protection visas with the Department of Immigration and Multicultural and Indigenous Affairs (as it was then known). A delegate of the first respondent refused the application for protection visas on 15 July 2006. On 11 August 2006 the appellants applied to the Tribunal for a review of that decision. 3 The appellants, who are from Gujarat, are a husband and wife aged 38 and 36 years respectively. Only the appellant husband made claims under the Convention Relating to the Status of Refugees 1951 and amended under the Protocol Relating to the Status of Refugees 1967 (the Convention) with the appellant wife relying on membership of his family unit. As only the appellant husband made claims to a fear of persecution, he will be referred to as the appellant.
THE TRIBUNAL'S DECISION 4 In his application for a protection visa, the appellant claimed to have a well-founded fear of persecution based on his religion and political opinion as a member of a Hindu organisation, Shiva Sena (SS) and a supporter of the Bharatiya Janata Party(BJP). He claimed that he actively campaigned against the Congress Party. 5 Before an election an extremist Muslim leader came to his house with his goondas (thugs) asking him to support the Congress Party candidate and threatening that if the Congress Party did not win the election his family would be in trouble. After the BJP won the election he was told to leave the city and pay money otherwise he would be killed. He and/or his family hid, but they were found, so he arranged to come to Australia. He claimed his life would be in danger if he returned to India. 6 At the hearing before the Tribunal he claimed that his shop was burnt and looted and his life ruined as a result of the 2002 Muslim-Hindu riots and he had to leave his house. 7 The Tribunalwas not satisfied that the appellant was a credible witness due to his lack of knowledge of the SS and the elections; inconsistent evidence; vague and general evidence about the circumstances surrounding his hiding; and the delay between the 2002 riots and the time he left home and closed the business. 8 The Tribunal also noted that independent country information showed violence had decreased following the 2002 riots in Gujarat and Muslims were in the minority and more likely to be harmed than Hindus in Hindu dominated areas such as Gujarat. The Tribunal therefore found that the appellant had never been an SS member and had not been threatened or been harmed as a result of the riots. Indeed, the Tribunal specifically concluded that the appellant was not a credible witness, that his claims had been invented and the chance that he would be persecuted in the future in the course of any riots due to any inter-religious tension or by Muslims for reasons of religion was remote.
THE FEDERAL MAGISTRATE'S DECISION 9 On 6 February 2007 the appellant sought judicial review in the Federal Magistrates Court. Before the Federal Magistrate the appellant claimed in his amended application that the Tribunal's decision was not made in good faith and breached natural justice. The appellant also claimed that the Tribunal failed to exercise its jurisdiction and made a jurisdictional error as it erred in its consideration of relocation, failed to give proper and adequate reasons, and failed to consider all claims before it. 10 Section 430(1) of the Act provides: (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based. 11 His Honour found that 'the Tribunal endeavoured to conduct a full and fair review' and gave the appellant the opportunity to give evidence and present arguments. The Federal Magistrate found no breach of the Tribunal's duty to give reasons under s 430 of the Migration Act 1958 (Cth) (the Act) and noted that its findings were 'logical and cogent'. Further, his Honour found the Tribunal considered all the claims except for State protection which it was not required to do in light of its findings that the appellant had not been a member of SS, had not campaigned for any BJP candidate in any election, did not go into hiding due to threats, had not been seriously affected by the 2002 riots and was not a credible witness. The Tribunal found his claims had been invented. 12 During the hearing the appellant raised two further grounds, firstly that the Tribunal failed to consider a photograph and failed to consider documents written in Gujarati. His Honour noted that the Tribunal did consider the photograph but found that it did not support the appellant's claims. In relation to the documents, his Honour noted that the Tribunal had no obligation to translate documents, but even if it did, no translation was provided to his Honour to show whether the lack of consideration amounted to jurisdictional error. 13 The second matter raised at the hearing was that the appellant did not have the opportunity to present the evidence in the Gujarati documents because he was only initially given two weeks to translate the documents, although the appellant conceded that the Tribunal then gave the appellant a further two weeks after the hearing to translate the documents. His Honour found that this did 'not amount to an inability to present evidence for which the Tribunal was responsible'.
GROUNDS OF APPEAL 14 It is to be noted that the appellant directed his initial grounds of appeal to the determination of the Tribunal rather than the decision of the Federal Magistrates Court. Subsequent submissions on the latter decision are dealt with below. 15 In the notice of appeal filed on 5 November 2007 in this Court, the appellant raised the following grounds of appeal:
Ground 1 - Jurisdictional error in determining relocation as reasonable and feasible 19 As framed, this ground does not identify an error of law. In H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 at [6], the Full Federal Court stated: An appeal to this Court from a decision of a judge of the Court is an appeal in the strict sense and not an appeal by way of rehearing (Dynasty Pty Ltd v Coombs (FC) (1995) 59 FCR 122 at 129; White v Minister for Immigration & Multicultural Affairs [2000] FCA 232). The appeal power is thus to be exercised for the correction of errors (Coal and Allied Operations Pty Ltd v The Full Bench of the Australian Industrial Relations Commission [2000] HCA 47 per Gleeson CJ, Gaudron and Hayne JJ at para 21). 20 There is essentially no complaint other than his Honour made the wrong decision or did not decide in favour of the appellant. No jurisdictional error has been identified by this ground of appeal. In my view it follows that this ground must fail.
Ground 2 - Failure to decide the real question as it had no rational basis on which to conclude there was no real chance of persecution 21 This was not a ground raised below before his Honour. It would follow that leave is required for the appellant to pursue the ground on appeal. The Minister has indicated that leave would be opposed. Leave to argue a new ground on appeal should only be granted in circumstances where it is expedient and in the interest of justice to do so (VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 per Kiefel, Weinberg and Stone JJ at [46]-[48]). In any event, it appears to me that the ground has no prospects of success. It is clear that the Tribunal did carefully consider whether the appellant had a well-founded fear of persecution by reason of his political opinion, religion or any other Convention based ground. It concluded that he did not because it found him not to be a credible witness. 22 This ground of appeal, in my view, has no prospect of success and accordingly I would not to grant leave to permit reliance on this ground. Further, had I permitted leave I would have dismissed the ground of appeal. 23 It follows that the ground must fail.
Ground 3 - Use of critical adverse information in breach of duty of procedural fairness and in breach of s 424A(1) of the Act 24 Again, this issue was not raised below and leave would be required for it to be raised on this ground. Once again the Minister opposes leave being granted on the basis that the ground has no prospects of success. In this regard it is clear that the Tribunal's reliance on country information is an exception to the Tribunal's obligation imposed by s 424A(1) of the Act. This is dealt with by s 424A(3)(a) of the Act. 25 This ground of appeal, in my view, has no prospect of success and accordingly I would not to grant leave to permit reliance on this ground. Further, had I permitted leave I would have dismissed the ground of appeal. 26 It remains only to deal with the submission that the decision of the Federal Magistrate, as distinct from the Tribunal, was not made in good faith. There is absolutely no support advanced by the appellant for this submission other than the fact that the decision made by his Honour was not in favour of the appellant. That is plainly no basis for such a significant submission. 27 As observed by the Full Federal Court in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at 755-756 in relation to a submission of lack of good faith (in that case, dealing with the Tribunal's review) the Full Court observed: (i) an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker; (ii) the allegation is not to be lightly made and must be clearly alleged and proved. (iii) there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition; (iv) the presence or absence of honesty will often be crucial; (v) the circumstances in which the Court will find an administrative decision maker has not acted in good faith are rare and extreme; (vi) mere error or irrationality does not of itself demonstrate lack of good faith; (vii) errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness; (viii) the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task; and (ix) it is not necessary to demonstrate that the decision maker knew the decision was wrong. (citations omitted) 28 If all that is true as indeed it is in relation to the Tribunal, it most certainly is true in relation to the Federal Magistrates Court. In reality, there is not the slightest hint of bad faith in the decision of the Federal Magistrates Court, indeed, the decision is comprehensively reasoned on a restrained and careful basis. I have no hesitation in concluding that this submission from the appellant fails.
CONCLUSION 29 It follows that the appeal must be dismissed. The appellant to pay the costs of the first respondent fixed at $900. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.
The First Appellant appeared in person and represented the Second Appellant
Counsel for the First Respondent: S Kantaria
Solicitor for the First Respondent: Clayton Utz
Date of Hearing: 25 February 2008
Date of Judgment: 26 February 2008
SZKDL
Minister for Immigration and Citizenship
[2007] FMCA 1806
(1995) 59 FCR 122
(2002) 194 ALR 749
[2000] HCA 47