SZKPH v Minister for Immigration & Citizenship

Failure to Consider the Claims Being Advanced? 14 A number of grounds assert that the Tribunal failed to consider the claims being advanced. One ground thus asserts that the Tribunal's decision failed to take "into account the full gravity of my circumstances and consequences of the claim." Another ground separately asserts that the "Tribunal did not take in to account certain relevant consideration or 'integers' central to the applicant's claim". Other grounds refer to the "immense and intimidating pressure" to which the now Appellant was exposed and assert a failure on the part of the Tribunal to consider those matters. 15 A number of answers may be given for rejecting these grounds. 16 First, to the extent that the grounds assert a failure to take into account considerations which are said to be relevant to the decision that was made, they are not considerations which the Tribunal was bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J. 17 Second, the grounds are in substance an impermissible attempt to propel both the Federal Magistrate and this Court into a review of the factual merits of the decision of the Tribunal. It is the Tribunal which has been entrusted by the legislature with the task of resolving factual matters: Kopalapillai v Minister for Immigration & Multicultural Affairs (1986) 86 FCR 547 at 558. The task of the Federal Magistrates Court is that conferred by s 476 of the Migration Act 1958 (Cth). The weight to be given to particular aspects of the claim being advanced is generally a matter for the Tribunal alone: Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J. 18 Third, there is no obligation imposed upon the Refugee Review Tribunal to refer in its reasons to every piece of evidence that was before it: SZEHN v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1389 at [58] per Lindgren J. A failure on the part of the Tribunal to refer to each individual claim or to a particular aspect of the evidence in support of a claim being advanced does not necessarily lead to a conclusion that the claim or that piece of evidence has not been considered. 19 Finally, and even if the Appellant could overcome the former obstacles to his success, the present Grounds of Appeal should be dismissed upon the basis that the Tribunal did in fact consider the claims being advanced by the now Appellant. There simply has been no failure on the part of the Tribunal to consider either the entirety of the claims being advanced by the now Appellant or, more specifically, the matters now relied upon in his Grounds of Appeal.

Denial of Procedural Fairness? 20 One Ground of Appeal asserts a failure to accord procedural fairness. Reliance is placed upon Muin v Refugee Review Tribunal [2002] HCA 30, 76 ALJR 966, a decision which the Appellant maintains is "identical" to his own. 21 The Notice of Appeal goes on to state: … My case is identical to Muin contending a want of procedural fairness in two respects. Muin had been misled into believing that the Tribunal had read some information, which had been in part B documents; and the Tribunal had not drawn to his attention some material adverse to his claims so as to enable him to comment upon them. It is the first of those contentions, which is relevant here. 22 In Muin the applicants had been led to believe that the Tribunal had certain documents - called the Part B documents - which had been before the delegate. Those documents were not before the Tribunal. A majority of the High Court concluded that there had been a denial of procedural fairness. Hayne J referred to an agreed statement of facts and concluded: [256] … The consequence of what has been agreed between the parties to each of the present actions is that each plaintiff was led to believe, by what the Tribunal said, that it had material relevant to that plaintiff's claim which it did not. [257] The agreed facts are silent about whether the Tribunal was aware of the information and opinions contained in the PtB documents. It may have been, but more importantly, it may not. It follows, therefore, that in each case, the plaintiff was denied procedural fairness. Neither plaintiff was given an opportunity to place before the Tribunal the material and submissions which, on the agreed facts, it is accepted that he or she would have submitted if not mistaken about what was before the Tribunal. Moreover, it also follows from the parties' agreement that each plaintiff would have made further submissions and sought to adduce further evidence that the Tribunal did not comply with the statutory provisions governing its conduct of the reviews of the plaintiffs' cases. It did not give each plaintiff the opportunity to make the submissions or give the evidence which the plaintiff wished to make and give. For these reasons, Question 1 of the questions reserved should, in each case, be answered "yes". Gummow J (at [171]) and Kirby J (at [194]) agreed with Hayne J. Gaudron J also agreed that there had been a denial of procedural fairness. 23 One difficulty confronting the Appellant in the present proceedings is not the principle for which Muin is authority; the Appellant's difficulty is the application of Muin to the circumstances of the present appeal. 24 The material before the delegate is set forth in his decision dated 11 December 2006. The material that was before the Tribunal is also set forth in its reasons for decision. There was no identification by the Appellant of those documents which he contended should have been before the Tribunal but were not. Generalised assertions as to a denial of procedural fairness and a citation of the decision in Muin does nothing to assist this Court in the resolution of a challenge to a decision of the Tribunal: SZJMU v Minister for Immigration & Citizenship [2007] FCA 1344 at [16] per Mansfield J. 25 A further difficulty confronting the Appellant in his reliance upon Muin is the fact that this ground was also not raised before the Federal Magistrate for resolution. Again, it is a ground apparently inserted consequent upon the meeting with the migration agent. Again, leave to raise this as a Ground of Appeal is refused. 26 A further aspect of procedural fairness potentially arises by reason of an alleged failure to comply with s 424A(1) of the Migration Act 1958 (Cth). No Ground of Appeal seems to raise any such alleged non-compliance. But that was a ground raised before the Federal Magistrate and rejected. Although not raised in the Notice of Appeal, the contention emerged in the written Outline of Submissions as filed in this Court by the Appellant. Those submissions contended that there had been a breach of s 424A(1) by the non-provision to the now Appellant of "the country information it had about Kerala and India". As explained by the Federal Magistrate, s 424A(3) provides that such information does not fall within s 424A(1). That "information", as is apparent from the reasons of the Tribunal, was not "about" the now Appellant: SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 at [23]-[26] per Tamberlin, Finn and Besanko JJ; Minister for Immigration & Citizenship v SZHXF [2008] FCAFC 36 at [18]-[22] per Tamberlin, Gyles and Stone JJ. 27 Similarly, the written submissions also assert that there has been non-compliance with s 430 of the 1958 Act. An instance provided by those submissions is the alleged failure on the part of the Tribunal to make a "finding as to the extent or nature of persecution suffered"by the Appellant. But there was such a finding, albeit one adverse to the Appellant. The Tribunal concluded that it was "not satisfied that, if the applicant returns to India now or in the reasonably foreseeable future, there is a real chance that he will be persecuted for reasons of his real or imputed political beliefs". That finding follows from the assessment of the Appellant's claims as made by the Tribunal. There has been no failure to comply with s 430. 28 There has been no denial of procedural fairness.

The Wrong Test 29 The final Ground of Appeal asserts that the Tribunal applied "the wrong test". It is alleged that the Tribunal placed a "high … onus of proof [upon] the applicant" and "fail[ed] to give the applicant the benefit of the doubt". 30 The difficulty confronting the Appellant in respect to this ground is the simple fact that the Tribunal just did not believe the evidence he was giving. The Tribunal set forth the evidence given by the now Appellant and concluded in part as follows: The Tribunal considers that the applicant has concocted claims of persecution for the purpose of the application. The applicant changed his claims in giving evidence during the hearing. For example, when the Tribunal was asking him about the bribes that his father had to pay the local officials, first he claimed that they came to his father's business to collect them. Later he said that his father took the money to the party office where it was shared by everyone present. The Tribunal does not accept that the applicant's father had to bribe authorities to allow his business to run smoothly. At times, the applicant appeared to be making up his story as he told it to the Tribunal. For example, when the Tribunal asked the applicant about interviewing and choosing prospective employees for the lolly business, he hesitated before stating that 10 employees were chosen; five were ex-employees from his father's business and five were new employees. When asked about how the ex-employees were contacted some three years after his father's business had closed down, the applicant said that they all lived close to the factory. The Tribunal does not accept that any employees were interviewed by the applicant or his sister with the prospect of reviving the lolly business. It is considered that the Tribunal's reasons and findings disclose nothing other than an assessment of the evidence being advanced by the now Appellant. No instance can be found where the Tribunal imposed any "high" onus of proof upon the now Appellant. 31 The final ground is also rejected.

Pro Forma Grounds of Appeal 32 Reference should be made to what may be a not inconsiderable problem confronting both litigants and this Court. 33 Previous appeals coming before this Court have raised Grounds of Appeal in precisely the same terms as have been employed in other proceedings. 34 In the present proceedings, a number of the Grounds of Appeal are in substantially the same terms as were before Justice Collier in SZINP v Minister for Immigration & Citizenship [2007] FCA 1747. Those grounds in the present appeal provided (without alteration): 3. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. 4. The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down by the full court of Federal Court in Randhawa v The Minister for Immigration Local Government and Ethnic Afairs (1994) 52 FCR 437. 5. The Federal Magistrate failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim. … 11. The Tribunal applied the wrong test: Particulars: a) The Tribunal applied the wrong test, by requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was , in fact , placing high an onus of proof an the applicant and failing to give the applicant the benefit of the doubt. b) The Tribunal left out individual elements of the applicant's claims and tested whether they individually amounted to persecution rather than look at the claim as a whole to determine whether the claim so considered amount to persecution. The grounds as they were expressed in the proceedings before Collier J differed to the extent that those grounds did not refer to the Magistrate as being "learned" and did not refer to the decision in Randhawa as being a decision of the Full Court or the citation to that decision. There is not much other difference between these grounds in the present proceedings and those before Collier J. 35 It is stating the obvious to acknowledge that Grounds of Appeal must be drafted by reference to the individual decision the subject of appeal and with specific reference to the arguments and issues resolved by the Federal Magistrates Court. The indiscriminate duplication of grounds imported from other proceedings, without consideration to the particular decision being appealed from, is only productive of grounds coming before this Court without any apparent relevance to the issues to be ventilated and of unrepresented litigants not being able to provide any further explanation as to the legal or factual issues to which the ground is said to be relevant. 36 An instance of such indiscriminate repetition of grounds advanced in other proceedings into the circumstances of the present appeal is, it is considered, exposed by the Appellant's reliance upon the decision in Muin. The documents which were not before the Tribunal in that case and which occasioned the denial of procedural fairness had been there identified as "the PtB documents". But there were no comparable documents identified in the present appeal which were said to have been not before the Tribunal and thereby denying the now Appellant of procedural fairness. 37 Reliance upon Randhawa may provide a further instance. The ground now relied upon in this Court did not find its counterpart in any of the grounds relied upon before the Federal Magistrate and was not mentioned in the applicant's written submissionsas filed with that Court. 38 Other parallels may also be discerned from a comparison between the grounds raised in the present proceedings and those before Collier J.

Orders 39 The orders of the Court are:

1. The appeal be dismissed.
2. The Appellant to pay the costs of the First Respondent of and incidental to the appeal. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate: Dated: 20 May 2008 Counsel for the Appellant: The Appellant appeared in person

Solicitor for the First Respondent: K Hooper (DLA Phillips Fox)