SZNHY v Minister for Immigration and Citizenship

i. The Tribunal asked questions which called for information which the applicant had not already provided to the Tribunal, or which the Tribunal had not obtained in another way.

b) The Invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act:

i) The invitation did not specify the way in which the additional information may be given.

ii) The invitation did not specify the period within which the information was to be given.

The second ground which, like the first, is numbered 2, is in these terms: 2. The grounds of the application are the Tribunal failed to comply with the mandatory procedure prescribed by the Act, in failing to comply with section 424AA(b)(iv) of the Act.

(a) His honour failed to establish that the Tribunal and the Federal Magistrate Court made error in law and jurisdictional error in relation to relief under section 424A of the Migration Act.

(b) His honour failed to find that the tribunal did not consider UNHCR section 4, 5, 9, 10 and did not consider at all cruelty against the humanity and therefore made error of law and jurisdictional error.

2 The applicants seek relief, so far as is relevant, in the form of a remitter of the matter to the Refugee Review Tribunal ("the Tribunal") for determination according to law. 3 In substance, the appellants' claim is that the Tribunal failed, in dealing with their application for review, properly to discharge its functions under Part 7 Division 4 of the Migration Act 1958 (Cth) ("the Migration Act"), in that, it is said, the Tribunal; · failed to comply with its obligations under s 424 of the Migration Act (ground 2 as first appearing); · failed to comply with its obligation under s 424AA(b)(iv) of the Migration Act (ground 2 as secondly appearing); · failed to comply with its obligations under s 424A of the Migration Act (ground 2(a) as secondly appearing, and · made an error of law in not considering various provisions of the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees, particularly articles 4, 5, 9 and 10 (ground 2(b) as secondly appearing). 4 Before dealing with those contentions, it is convenient to set out some of the background to this appeal.

Factual and procedural background 5 A summary of the relevant circumstances of the appellants was set out by the Tribunal in its reasons for decision. So far as is relevant, those facts are as follows. The appellants are Indian nationals. They arrived in Australia on 3 July 2008, having been granted visitor visas on 25 June 2008. They are husband and wife, and the claims each has made at each level of the decision-making process are relevantly identical. On 13 August 2008, they applied to the Department of Immigration and Citizenship for Protection (Class XA) visas. By a letter dated 31 October 2008, a delegate of the Minister notified the male appellant that his, and consequently also his wife's, application had been refused. The delegate's letter included these paragraphs; I wish to advise you that the application for this visa has been refused. After careful consideration of all the information you have provided, I was not satisfied that you met the relevant criteria for the grant of this visa as set out in Australian migration law.

To be granted a Protection visa, you must be a non-citizen in Australia to whom Australia has protection obligations under the United Nations Refugees Convention of 1951 as amended by the Refugees Protocol of 1967. You have been refused a Protection visa because you do not satisfy this criterion.

6 On 14 November 2008, the appellants applied to the Tribunal for review of the delegate's decision. 7 At the heart of the appellants' case before the Tribunal was that SZNHY, and, later SZNHZ, had joined a spiritual organisation called Dera Sacha Sauda ("DDS"). That had led, SZNHY contended before the Tribunal, to difficulties with the authorities, in that; [i]n May 2007 we were accused of insulting Sikhism and that controversy developed into serious law and order problem in various part north India. At least one of our followers was killed and thousands injured in sectarian violence. Members of Sikh Youth Federation attacked my house and I have been tortured and beaten by the Sikh groups. All our valuables ransacked and my wife assaulted and blood was gushing from her nose and mouth. After that incident hatred towards us had developed, even among my neighbours. Some of our followers became aggressive against Sikh mobs. "In real desperation", SZNHY said, he fled India. 8 It is apparent from the Tribunal's statement of reasons that it questioned the appellants extensively about their beliefs and attendant practices, and about the situation in which they found themselves because of them. There was extensive review of the evidence, in particular, of a violent confrontation between members of DDS and others at the appellants' home, where a DDS meeting had been taking place ("the 20 May 2007 incident"). It is unnecessary to rehearse the Tribunal's entire process of reasoning in relation to this incident, but its ultimate relevant finding of fact was that; The Tribunal accepts that in 2007 there were violent clashes between DDS and various Sikh groups. However, the Tribunal is not satisfied that the applicants were the victims of violence or criminal damage on 20 May 2007 or that they went into hiding from that time, as claimed. 9 That conclusion, as appears from the Tribunal's reasons for decision, proceeded from an adverse finding by the Tribunal as to the appellants' credibility. In summary, the Tribunal based that finding on these factors: · an inconsistency between the evidence of each appellant as to SZNHZ's visits to Sirsa, the residence of the spiritual leader of the DDS; · an inconsistency between the evidence of each appellant as to whether they had, since leaving their home after the 20 May 2007 incident, seen their children, and if so how many times and under what circumstances; · an inconsistency between the respective accounts of the appellants, and doubts, about what assault and damage had taken place during the 20 May 2007 incident; · the Tribunal's view that it was "implausible" that, if 125 to 150 people had been present at the appellants' house immediately before the 20 May 2007 incident, none of them assisted had the appellants during any assault; and · the Tribunal's view that the appellants' delay (between May 2007 and June 2008) in applying to come to Australia evinced a lack of fear of serious harm. "The above matters", said the Tribunal; … collectively lead the Tribunal to find that the applicants are not credible witnesses and it rejects their claims that they were targeted because of their involvement with the DDS. It therefore rejects all their claims that flow from that claim including that they were assaulted on 20 May 2007; their property was damaged; that they never returned to their home after 20 May 2007 because of a fear of persecution and that they fled India because of that fear. The Tribunal is not satisfied that the applicants were or are the targets of Sikhs in India because of their membership of the DDS or that the police suspect the applicant husband of involvement in anti-Sikh activities. The Tribunal is not satisfied that there is a real chance that the applicants would suffer serious harm for reasons of their membership of the DDS if they return to India in the reasonably foreseeable future. 10 On 13 February 2009, the Tribunal, accordingly, affirmed the delegate's decision. On 10 March, the appellants applied to the Federal Magistrates Court for an order to show cause. That was replaced, on 15 March 2009, by an amended application.

Proceedings in the Federal Magistrates Court 11 The amended application before the Federal Magistrates Court invoked various grounds as follows. First, it was said, that the appellants had not been provided with an opportunity to appear before the Tribunal, essentially because they had appeared by video link. Secondly, the appellants had been denied procedural fairness in that they had not been given an opportunity to respond to material upon which the Tribunal had based findings of implausibility. Thirdly, the Tribunal had committed an error in not finding that the appellants met the Convention definition of "refugee". The fourth grounds, also numbered "3", was that the Tribunal had failed to investigate the appellants' claim to have suffered persecution and, as a result, its decision was "affected by actual bias constituting jurisdictional error." 12 The first ground was shortly dealt with by the learned Magistrate by holding, in the light of s 429A of the Migration Act, as explained in SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712, that it was "impossible for [it] to succeed"; see the Magistrate's reasons at [15]-[20]. 13 In relation to the second ground, raising the Tribunal's finding of implausibility, the learned Magistrate referred, at [24] of his reasons, to what was said by Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, at 626: Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as "illogical" or "unreasonable", or even "so unreasonable that no reasonable person could adopt it". If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence. The Magistrate then said that the contention advanced before him by the appellants fell "within the same general parameters" as that described above by Gleeson CJ and McHugh J. Further, he pointed out, citing the remarks of Brennan J in Waterford v The Commonwealth (1987) 163 CLR 54, at 77, that an incorrect finding or conclusion of fact is not, without more, an error of law. The second ground before the Magistrate, therefore, also failed. 14 The third ground advanced by the appellants, relating to the Tribunal's alleged failure properly to consider the Convention definition of "refugee" could not be sustained, the Magistrate considered, given the passages of the Tribunal's decision which referred to the Convention and its Protocol, and revealed a consideration of Australia's obligations thereunder. 15 The fourth ground advanced by the appellants asserted a failure by the Tribunal to investigate their claim that they had been subjected to persecution in India. The learned Magistrate considered that the Tribunal's statement of reasons dealt "at length, and repeatedly" with that issue, and, accordingly, held that there was no basis for that ground. 16 The fifth and final ground advanced before the Magistrate related to the "actual bias" contention put by the appellants on the basis of the Tribunal's failure to investigate their claims of persecution. Referring to the guidance given by the High Court in relation to actual bias in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, he concluded that there was no evidence advanced and nothing on the face of the Tribunal's record which suggested any bias on the part of the delegate or the Tribunal and that, consequently, this ground, also had not been made out. Accordingly, as already mentioned, the Federal Magistrate dismissed the amended application.

The appeal to this Court 17 On 16 September 2009, the appellants filed proceedings in this Court. I have already set out at the beginning of these reasons the nature of their appeal and it is to the contentions embodied in that notice that I now turn. 18 It is apparent, as Mr Horan of Counsel who appeared before me for the Minister, emphasised in his written outline of submission, that the grounds of review pressed by the appellants before this Court are considerably different to the grounds of review argued before the Federal Magistrate. Indeed, Mr Horan went so far as to contend that the appellants' grounds of appeal are in "identical terms" to those which were pursued before Cowdroy J by another applicant, SZNLT. In disposing of that application (see SZNLT v Minister for Immigration and Citizenship [2009] FCA 1332, at [21]), his Honour was moved to say; The grounds of appeal are confusingly and inconsistently formatted, which gives the impression that they have been produced in a pro-forma fashion with little regard for their relevance to this particular appellant. 19 Putting to one side their undoubted similarity to other notices which have been filed in this Court, there is a more fundamental obstacle to the appellants' putting their grounds as they have. By their notice of appeal to this Court, they seek to rely on grounds which were not raised before the Federal Magistrate. Ordinarily, an appeal court will be slow to entertain arguments which were not before the court of first instance. The reasons for that approach have been explained by the High Court in Coulton v Holcombe (1986) 162 CLR 1, per Gibbs CJ, Wilson, Brennan and Dawson JJ, at 7 et seq. In the migration context, a Full Court of this Court said, in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, at [48], that: The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. See too WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624, per French J, at 629 and SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578, per Flick J, at [7]-[10]. 20 Mr Horan submitted, on the basis of the principles established by those authorities, that it is first necessary for this Court to give leave to the appellants to allow them to rely upon the grounds in their notice of appeal, and that, secondly, leave ought to be refused because they "do not have any 'clear merit', nor have the appellants offered any acceptable explanation for their failure to raise the grounds before the Federal Magistrates' Court". 21 I accept, for the reasons explained in those authorities that, in the circumstances of this case in which the notice of appeal to this Court has departed to such a great degree from the notice of appeal in the Federal Magistrates Court, leave to rely upon those grounds is necessary. To determine whether that leave ought be granted, the Court must therefore, as indicated by Flick J's terms in SZKCQ: … give some consideration to the merits of the issues sought to be raised - but it is not necessary to "enter upon a full consideration of the grounds". To do otherwise would "make the requirement for leave meaningless":Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [24] per Heerey, Moore and Goldberg JJ.

The First Ground of Appeal 22 I turn then to consider the first ground of appeal, that was ground 2 as first appearing, which alleges a failure on the part of the Tribunal to comply with ss 424 and 424B of the Migration Act. In particular, as I read it, attention is directed to the Tribunal's failure to issue various invitations to give information. When exercising its general information-gathering powers under s 424, the Tribunal is not required to give effect to the invitation provisions in ss 424(3) and 424B. That is so because the information-gathering mechanisms provided for, respectively, in s 424(1) and (2) are distinct. Therefore, the invitation requirements which attach when information is sought under s 424(2) or s 424B do not apply when the Tribunal, as here, is merely seeking information under s 424(1); see Minister for Immigration and Citizenship v SZKTI [2009] HCA 30, at [45]-[48]. In my view, this ground has no prospect of success.

The Second Ground of Appeal 23 The appellants' second ground of appeal (ground 2 as secondly appearing) which is set out at [1] above, alleges that the Tribunal failed to comply with its obligation under s 424AA(b)(iv) of the Migration Act. Section 424AA provides under the heading "Information and invitation given orally by Tribunal while applicant appearing" as follows: If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a) the Tribunal may orally give to the applicant 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

(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii) orally invite the applicant to comment on or respond to the information; and

(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv) if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

24 In the portion of the Tribunal's reasons for decision dealing with one of the factual inconsistencies which it had perceived in SZNHZ's evidence, the Tribunal records that it: … explained s 424AA to the applicants… Both applicants chose to comment and respond in relation to the discrepancy during the hearing at the Tribunal. They did not seek any time and did not wish to provide anything in writing. 25 At the threshold, then, the appellants must fail on this point: in the absence of their having "[sought] additional time to comment on or respond" to information. The sub-section was not put in issue before the Federal Magistrate and it does not avail them. The second ground of appeal must therefore also fail.

The Third Ground of Appeal 26 The appellants' third ground of appeal alleges a failure on the part of the Tribunal to discharge its obligation under s 424A. The function of that section, clearly enough, is to enshrine a requirement of procedural fairness, in that it requires the Tribunal, in a qualified fashion, as appears from s 424A(1), to give an applicant notice of the basis, or bases, on which it proposes to affirm a decision under review. No particular failure was put or submitted by the appellants. In the absence of any further support for it this ground also fails.

The Fourth Ground of Appeal 27 At its highest, as I have already recounted, this ground is essentially that the Tribunal made an error of law in not considering various provisions of the Convention Relating to the Status of Refugees, as amended by the Protocol Relating to the Status of Refugees, particularly articles 4, 5, 9 and 10. An argument of that type was dealt with by Flick J in SZKCQ (supra). Except insofar as they deal with the particular factual circumstances of the applicant then before his Honour, I consider that his Honour's remarks apply with equal force to the reliance in this Court on a failure to take account of the provisions of the Convention: Flick J said, commencing at [21] of his reasons; [21] This proposed Ground presents a number of difficulties.

[22] First, and most fundamentally, it has not been possible to identify "section 4,5,8,9,10". Potentially these "sections" may have been intended as references to articles within the United Nations' Convention relating to the Status of Refugees (1951) or (possibly) guidelines contained within the United Nations High Commissioner for Refugees' UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (1999). But, that seems unlikely. The unrepresented Appellant was unable during the course of the present hearing this morning to further clarify that to which he was intending to refer.

[23] Second, at best, whatever those "sections" may be, they would not appear to be provisions by which the Tribunal would be bound.

[24] And, third, this Ground does not appear to be directed to any fact as found by the Tribunal. A Statement of Claim annexed to the Application for a Protection (Class XA) visa in June 2006 asserts that the now Appellant "was beaten and tortured by government officials". He further there asserted that "[h]e was released after six months of very painful period". But the Tribunal concluded in its reasons for decision in October 2008 that his "account of his arrest and detention is vague, lacking in detail and implausible". The Tribunal was "not satisfied that the applicant was arrested and detained as claimed …". It further concluded that other "incidents in which he claims to have been harmed were vague and lacking in detail".

[25] This proposed Ground is therefore also without reasonable prospects of success.

The disposition of the appeal 28 In circumstances in which new grounds are sought to be put before this Court, as I said, the Court's preliminary task is to assess the merits of the points sought to be raised, and to grant or withhold the necessary leave in that light. As the Full Court emphasised in Iyer v Minister for Immigration and Multicultural Affairs (supra), descent into a detailed consideration of each new ground sought to be raised would render that requirement meaningless. However, it is clear that none of the grounds sought to be advanced by the appellants has merit, and I refuse leave to raise each of them. 29 Against the possibility that I am wrong in my perception of the distance between the grounds put before the Magistrate and the grounds raised in this Court and that, therefore, the appellants do not require no leave to advance them, I record also that I do not perceive, even upon careful analysis, especially in the way they have been developed during the hearing, that any of the grounds have, as currently formulated, any reasonable prospect of success. 30 Behind the appellants' notice of appeal, which as I have already indicated is not as well adapted to the circumstances before the Court as might have been desirable, appears to me to be a contention that the Tribunal had been wrong in all or some of its factual findings and the Federal Magistrate was in error in not correcting those erroneous findings. 31 As I endeavoured to explain to the appellants through their interpreter today, submissions of that type, while understandable, ignore the fundamental distinction between the fact-finding function of the Executive, being in this case the delegate and the Tribunal, and the legality of the findings of fact and the application to the facts so found of the relevant law which is the province of judicial review, in this case by the Federal Magistrates court and this Court. There was not before me any submission that the Tribunal had committed an error of law, had fallen into jurisdictional error, or otherwise transcended the legal limits of the functions reposed in it. Similarly, there was before me no submission that the Federal Magistrate had committed any appellable error of the type discussed in Coal and Allied Operations Pty Ltd v AIRC (2003) 203 CLR 194, at 203-4 et seq. I cannot, in those circumstances, be persuaded to set aside the decision of the Federal Magistrate.

Conclusion 32 For the reasons I have outlined the appellants have failed to demonstrate any appellable error in the decision below. Nor have I been persuaded that the hearing of appeal should be adjourned or that they should have leave to raise any of the grounds in their notice of appeal. Accordingly, the appeal embodied in the amended notice must be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.