SZLJN v Minister for Immigration and Citizenship

Federal Court of Australia|2008-05-27|Before: Flick J

REASONS FOR JUDGMENT 1 The Appellant claims to be a citizen of India. 2 The Appellant arrived in Australia on 3 March 2007 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) Visa on 29 March 2007. A delegate refused to grant that visa on 27 April 2007. In refusing the application the delegate noted that the applicant claimed to be a "thirty one year old homosexual Indian Punjab Sikh male" and that Indian society was hostile to homosexuality. 3 An application for review of the delegate's decision was lodged with the Refugee Review Tribunal on 8 May 2007. The Tribunal by way of a decision signed on 15 August 2007 affirmed the delegate's decision. In doing so, the Tribunal made an "Assessment of sexual orientation claims" and concluded in part as follows: The Tribunal appreciates the need for particular care in assessing claims about sexual orientation. It may be easy to assert such claims, yet difficult for applicants to substantiate and for decision-makers to evaluate them. By their very nature, they involve private issues of self-identity and sexual conduct, and sometimes personal issues for individuals that may be stressful or unresolved. Social, cultural and religious attitudes to homosexuality in an applicant's society may exacerbate such problems. With these issues in mind, the Tribunal explored with the applicant a wide range of circumstances relevant to its assessment. These included his self-identity; his self-disclosure and others' perceptions of him; his past experiences; his knowledge of and association with other homosexuals; his relationships and personal contacts; and incidental evidence. Assessment of the applicant's claims The Tribunal finds on the available material that the applicant is not a homosexual and that he will not be perceived as such. … Reasons were thereafter provided for the conclusion reached. 4 An application to review that decision of the Tribunal was dismissed by the Federal Magistrates Court on 4 March 2008: SZLJN v Minister for Immigration & Citizenship [2008] FMCA 352. 5 The Appellant now appeals to this Court. The Notice of Appeal as filed sets forth as follows the Grounds of Appeal, namely: GROUNDS: 1. The Honourable Federal Magistrates Court erred in interpreting the construction of s424A of the Migration Act 1958 ('the Act"). 2. His Honour failed to determine that the purpose of s424A was not served in the proceeding of this applicant. 3. The Honourable Court also erred in law determining that the Refugee Review Tribunal ("the Tribunal") was in a breach of procedural fairness. 4. Additional details will be provided later. No "Additional details" have been provided. The Appellant appeared before this Court unrepresented, albeit with the assistance of an interpreter. He was unable to provide further clarification as to what was intended to be conveyed by the Grounds of Appeal. 6 It is considered that the appeal should be dismissed.

SECTION 424A 7 Section 424A of the Migration Act 1958 (Cth) provides as follows: 424A Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review ; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non disclosable information. 8 Section 424A(1) employs the term "must" and compliance with that provision is, accordingly, mandatory: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, 228 CLR 294; SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [13], 235 ALR 609 at 614 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. 9 Compliance with s 424A must necessarily be judged by reference to the facts as they emerge in each individual case. In the present proceedings the Tribunal wrote to the now Appellant on 25 July 2007 inviting him to comment upon the matters raised in that letter. Included amongst the "information" upon which the now Appellant was invited to comment was the following: The particulars of the information are: · Your visitor visa application states that you are married to Sarabjeet Singh (DOB 19/03/1973) and that you have a daughter Avemset Kaur (DOB 06/04/2004). You also gave details of your parents that correspond with the information on your passport and in your protection visa application. However, your protection visa application states that you are unmarried. This information is relevant because it may raise questions about your sexuality, and about the truthfulness of the information you provided in your protection visa application. This letter plainly invited the now Appellant to comment upon matters centrally relevant to the final decision of the Tribunal. But no response was received to that letter.

SECTION 424A AND PROCEDURAL FAIRNESS 10 The manner in which it is contended that the Federal Magistrates Court erred in the construction of s 424A was not further explained. Nor has it been possible to discern any error. Indeed, the relevant conclusions of the Federal Magistrate were as follows: 18. In his application the applicant repeated his claim that the Tribunal breached procedural fairness in making a decision, and also breached the provisions of s 424A of the Migration Act. The applicant did not file a written outline of submissions, or an amended application. He did, however, attend Court. When asked by the Court to expand on his claims, the applicant complained that he had not received procedural fairness because his story that he told the Tribunal was true, but the Tribunal did not believe him. The applicant was not able to give any particulars of his claim of a breach of s 424A of the Migration Act. It is clear that the applicant's grievance with the Tribunal is the Tribunal's failure to accept the truthfulness of his evidence. He asked the Court to remit his matter to the Tribunal so that another hearing could be conducted. … 22. As to the alleged breach of s 424A of the Migration Act, the applicant had provided no particulars in support of the ground. It is also submitted that the Tribunal complied fully with the requirements of s 424A. 23. In dealing with the applicant's claims, I would indicate first of all that I am unable to see how it was that the applicant did not receive procedural fairness. He was invited to attend the hearing. In the letter inviting him to attend a hearing the Tribunal made it clear that the information that it had was not sufficient to make a decision in his favour. The applicant attended the hearing, and there is nothing to suggest that he was unable to give his evidence. He was provided with an interpreter and there was no complaint made about difficulty with interpreting. The Tribunal had written to the applicant under the provisions of s 424A of the Migration Act putting certain matters to him, but the applicant did not provide any comments on that letter. 24. I am mindful of the fact that s 422B of the Migration Act applies to these proceedings. The fact is that the applicant has not made out any breach of procedural fairness, either under the Act or at common law. There is nothing to indicate that the Tribunal proceedings were in any way unfair. In respect of the second ground the applicant had not provided any particulars to show why the Tribunal had not complied with the provisions of s 424A of the Migration Act as he claims. Indeed, it is clear that the evidence which the Tribunal considered to be weighty was put to the applicant for his comment in a letter written under the provisions of s 424A of the Act, and handed to the applicant after the conclusion of the hearing. The applicant could have replied to that letter and provided comments, but apparently chose not to. 25. I am not of the view that the applicant has shown any breach of s 424A of the Migration Act. I am not of the view that the Tribunal did not give the applicant natural justice as he claims in his application. I am not of the view that there is any breach of procedural fairness. The applicant's grounds in his application and the ground in his affidavit must therefore fail. I am mindful of the fact that the applicant is not legally represented in these proceedings. I have read through the Tribunal decision independently of either the applicant's application or the Minister's submissions. 11 This Court is in no better position than the Federal Magistrates Court. 12 The error in "interpreting the construction of s 424A" has not been explained. The letter inviting the now Appellant to comment upon the "information" therein identified was separately considered and no breach of s 424A is otherwise discernible. The ground as advanced before the Federal Magistrate by the now Appellant provided neither that Court nor this Court with any further clarification as to what was intended to be conveyed. Before the Federal Magistrates Court, the ground was simply expressed as: "The Tribunal breached s 424a of the Migration Act 1958". 13 Grounds 1 and 2 of the Notice of Appeal are therefore dismissed. 14 Nor has there been any further explanation as to the manner in which it is said that the Appellant has been denied procedural fairness. None can be discerned. Section 425(1) of the Migration Act provides for an applicant to be extended an invitation to appear before the Refugee Review Tribunal. That sub-section provides as follows: Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The right conferred by this provision is "clearly an important and central right in the merits review system established by Pt 7 of the Act": Liu v Minister for Immigration & Multicultural Affairs [2001] FCA 1362 at [44], 113 FCR 541 at 552; Amankwah v Minister for Immigration & Multicultural Affairs [1999] FCA 1162 at [13], 91 FCR 248 at 251. The invitation to attend an oral hearing "must not be a hollow shell or an empty gesture": Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [31],183 ALR 188 at 194-5. 15 The now Appellant appeared before the Tribunal at a hearing conducted on 25 July 2007. The "RRT Hearing Record" discloses that the hearing commenced at "11:38am" and concluded at "14:15" and that there was a short adjournment from 1:38pm to 2:04pm. Considerable time, it would appear, was taken in pursuing with the now Appellant the claims then being advanced. 16 A reading of the reasons for decision as provided by the Tribunal similarly records the manner in which the hearing proceeded and records in considerable detail the questions asked of the now Appellant and his responses. Although not decisive, when asked at the hearing of the appeal what it was he alleged that the Tribunal had done wrong, the now Appellant's response was simply that "The Tribunal didn't believe my refugee claim". But the resolution of the merits of the claims then advanced was for the Tribunal to determine. It is not the function of either the Federal Magistrates Court or this Court to revisit those findings of fact. 17 There is no basis for concluding that the hearing undertaken by the Tribunal was anything other than a fair and meaningful opportunity for the now Appellant to present his claims and to make submissions. 18 This ground is also dismissed.

APPLICATION TO AMEND AND TO ADJOURN? 19 At the outset of the hearing of the appeal, the Appellant sought to file an Amended Notice of Appeal raising as grounds: (i) jurisdictional error; and (ii) a failure to comply with s 424A. 20 Leave to amend was opposed by Counsel for the Respondent Minister upon the basis that the ground raising "jurisdictional error" was unparticularised (other than alleging a further unidentified "error of law") and that the grounds either raised no issues different to those in the existing Notice of Appeal,or had no prospects of success. An amendment, such as that proposed, which is ambiguous and raises nothing of substance, will not be permitted: Australian Broadcasting Commission v Parish (1980) 29 ALR 228, 43 FLR 129. 21 Those submissions of Counsel for the First Respondent were accepted and leave to amend was consequently refused. 22 A further reason for refusing leave to amend was the concern of the Court that the proposed amendments were obviously drafted by someone other than the Appellant, who (not surprisingly) had no knowledge of either what was intended to be conveyed by the concept of "jurisdictional error" or the "information" which, it was contended, should have been conveyed pursuant to s 424A. The Appellant could thus provide no assistance to the Court as to what was intended to be embraced by the proposed amendments which was not otherwise within the existing Notice of Appeal. 23 Whoever may be the drafter of the Grounds of Appeal, the primary function of this Court is to resolve all such arguments as appropriately arise out of the decision the subject of appeal. The central principle is to do justice between the parties: Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128. The "starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided": SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035 at [14] per Edmonds J. 24 An unrepresented appellant, in particular, should have no unnecessary impediment placed in his path. But it is considered that this Court should be cautious in too readily permitting amendments to be made at the last minute in respect of appeals from decisions of the Federal Magistrates Court dismissing applications to review decisions of the Refugee Review Tribunal. The need for caution arises by reason of the fact that in many appeals, as in the present appeal, the Notice of Appeal is all too frequently drafted by unidentified persons and with apparent little regard to either the decision of the Tribunal or - more importantly - the decision of the Federal Magistrates Court. Particularly is that the case where, as in the present case, the proposed Amended Notice of Appeal does not state "briefly, but specifically, the grounds relied upon" as required by Order 52, r 13(2)(b) of the Federal Court Rules 1979 (Cth). The lack of specificity may well be the product of the grounds being drafted without proper regard to the decision the subject of appeal. Considerable care needs to be exercised to ensure that the rights of unrepresented litigants are not prejudiced; but care also must be exercised to ensure that the processes of this Court are not abused. 25 An application was also made at the hearing for the proceedings to be adjourned to enable the Appellant to obtain legal advice. That application was opposed by Counsel for the Respondent Minister, but no prejudice was claimed in the event that the application proved to be successful. 26 An adjournment until 27 May 2008 was offered to the Appellant but declined. No further adjournment, it is considered, was appropriate. The Notice of Appeal was filed on 19 March 2008 and the Appellant had known for some time that the hearing was to take place on 21 May 2008. 27 In such circumstances the Grounds of Appeal should be dismissed.

ORDERS 28 The orders of the Court are:

The appeal be dismissed.
The Appellant to pay the costs of the First Respondent of and incidental to the appeal. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate: Dated: 27 May 2008 Counsel for the Appellant: The Appellant appeared in person

Solicitor for the First Respondent: E Warner Knight (Australian Government Solicitor)

Federal Court Rules 1979(Cth)

Migration Act 1958(Cth)ss 424A, 425(1)

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