SZNOA v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The appellants appeal from the decision of Federal Magistrate Raphael delivered on 1 October 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 8 April 2009. The Tribunal's decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship ('the Minister') to refuse to grant Protection (Class XA) visas to the appellants.

BACKGROUND 2 The appellants, who are husband and wife, are citizens of India who arrived in Australia on 13 October 2008. On 21 November 2008 the appellants lodged applications for protection visas with the Department of Immigration and Citizenship. A delegate of the first respondent refused the applications on 24 January 2009. On 13 February 2009 the appellants applied to the Tribunal for a review of such decisions. 3 In his application for a protection visa, the appellant husband ('the appellant') claimed that he supported the Bharatiya Janata Party ('the BJP') in India, and that he worked for his local candidate during the December 2007 elections. The appellant stated that on 16 December 2007 he and other campaigners were attacked by 'Muslim mobs' who were opposed to the BJP and that the Muslims went to his uncle's house and threatened his uncle. He claimed that he went to Kalol, a smaller town approximately 35 km away, but on 12 February 2008 he was attacked there by the same people involved in the first attack. He stated that he remained in Kalol before travelling to Australia. 4 The appellant's wife relied on the claims of her husband as part of the family unit.

THE TRIBUNAL'S DECISION 5 The Tribunal accepted that the appellant was a supporter of the BJP and that he had been attacked by his political opponents. However, it formed the view that he was not at risk of harm from political opponents at the time he left India in October 2008 and that it was satisfied that he was not at risk of Convention related harm should he return. The Tribunal found that if the appellant had been a person of ongoing interest to Congress party supporters of Muslims opposed to the BJP he would have been targeted between February and October 2008. The Tribunal formed the view that the appellant suffered difficulties with political opponents during the election period and when that period ended he was no longer a person of concern to his political opponents. 6 The Tribunal found that the appellant may again be at risk of violence from political opponents during an election period if he became actively involved with the BJP. However, the Tribunal was satisfied that if such a risk arose, the appellant would have access to a reasonable level of protection from the State, as he did during the 2007 election. The Tribunal considered that the authorities in India responded appropriately to his calls for assistance and that the appellant was provided with a reasonable level of protection by the state in those circumstances. The Tribunal found that the state in India provided a reasonable standard of protection for its citizens and was satisfied that if the appellant required it, he would have access to a reasonable level of protection. 7 The Tribunal was therefore not satisfied on the evidence before it that the appellant faces a real chance of serious harm in India such that it gives rise to a well founded fear of persecution for reasons of political opinion or any other Convention ground. As such the Tribunal affirmed the decision of the delegate not to grant the appellants protection visas.

FEDERAL MAGISTRATES COURT 8 By application filed in the Federal Magistrates Court of Australia on 1 May 2009 the appellants sought judicial review of the Tribunal's decision. 9 Before Raphael FM the appellants claimed, inter alia, that the Tribunal failed to correctly use the country information; failed to properly analyse any future harm he may face if he returned to India; that the appellant met the Convention definition of a refugee; and that the Tribunal failed to investigate his claims and was biased. 10 Addressing these claims, the Federal Magistrate firstly stated that the choice and assessment of country information is a factual matter for the Tribunal, and was for the Tribunal to identify the material it finds relevant and to give it the appropriate weight. Secondly, his Honour found the Tribunal did not fail to properly analyse the chance of future harm the appellant may face if he returned to India. Thirdly, his Honour observed that it was not for the Court to conduct a merits review of the Tribunal's decision. Finally, his Honour found that the Tribunal did investigate the appellant's claims, and in any event, there is no general duty upon a Tribunal to make inquiries. Nor was there any evidence of bias in the Tribunal's decision 11 Having found no jurisdictional error in the Tribunal decision, Raphael FM dismissed the application.

APPEAL TO THIS COURT 12 On 21 October 2009 the appellants filed in this Court a Notice of Appeal from the decision of Raphael FM. The appellants raise the following grounds of appeal: 2. The Federal Magistrates Court failed to consider the Tribunal failed to comply with s424 of the Migration Act 1958.

a) At The hearing, the Tribunal invited the applicant to give information addition to that which the Tribunal had obtained

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.

3. The grounds of the application are the Tribunal failed to comply with the mandatory procedure prescribes 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.

SUBMISSIONS OF THE APPELLANT 13 The appellant appeared, assisted by an interpreter. It was apparent at the hearing that he did not understand the grounds of appeal in his Notice of Appeal. The appellant explained that the Notice of Appeal had been prepared by a friend who was a migration agent. When the appellant was invited to make any submissions, he alleged that the Tribunal had failed to investigate the circumstances in which he resided and lived in the Kalol area, and that he was not satisfied with its decision. The appellant made no other submissions. The appellant made no submissions with regard to the grounds of appeal stated in the Notice of Appeal.

FINDINGS 14 The Court considers that the appellant's oral submission was essentially a new ground of appeal seeking to challenge the factual findings of the Tribunal. Leave is required to raise a fresh ground of appeal if it was not previously raised before the Federal Magistrate: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]-[24]; see also VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [26]. The Court observes however that a similar ground was raised before Raphael FM. His Honour's reasons for judgment show that before him the appellant claimed that the Tribunal 'failed to properly analyse any future harm he may face if he went back to India'. In the appellant's fourth ground raised before the Federal Magistrate he also alleged that the Tribunal 'failed to investigate his claims, especially the claims of persecution in India'. 15 As was observed by Raphael FM there is no general duty upon a Tribunal to make enquiries: see Minister for Immigration v Le and Others (2007) 164 FCR 151 and the choice in assessment of country information is a factual matter for the Tribunal: see NAHI v Minister for Immigration [2004] FCAFC 10 [11]-[13] (NAHI). His Honour also correctly observed that there was no obligation upon the Tribunal to make good an applicant's claim: see Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15. Matters of fact, such as the Tribunal's conclusion of the circumstances prevailing in the appellant's former country are matters of fact with which this Court cannot interfere (see NAHI). 16 Accordingly the Court considers leave should not be granted to the appellant to rely upon the suggested ground referred to in his oral submission.

Notice of Appeal 17 The Court now refers to the ground of appeal referred to in the Notice of Appeal. At the outset the Court observes that the first ground in the notice of appeal which is numbered 2 is a proforma document often used in appeals in this Court since the decision of Raphael FM in SZNAV and Others v Minister for Immigration and Another (2009) 110 ALD 604. In that decision his Honour found that the 'acknowledgement letter' sent by the Tribunal was an invitation for additional information pursuant to s 424(2) of the Migration Act 1958 (the Act). Such decision however was reversed by the Full Court on appeal: see Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109. 18 Further, the Court observes that ground 2 and ground 3 were not raised before Raphael FM. Accordingly, leave is required to rely upon such grounds: see VAAC. 19 Ground 2 claims that the Tribunal asked questions of the appellant during the hearing which invited him to give additional information but that the Tribunal failed to comply with ss 424(3)(a) and 424B of the Act. The Court notes that the reference to 'information addition' [sic] in the ground numbered 2(a) appears to be based upon the provisions of s 424 of the Act prior to its amendment. Such amendment was contained in items 9-15 of Schedule 1 of the Migration Legislation Amendment Act (No. 1) 2009 (Cth) which came into effect on 15 March 2009. As a result of the amendments, the current and relevant version of s 424 only refers to 'information'. No distinction is drawn between 'information' and 'additional information'. Section 424(1) empowers the Tribunal to 'get any information that it considers relevant' and s 424(2) now provides that the Tribunal may 'invite either orally (including by telephone) or in writing a person to give information'. The distinction which previously existed and referred to by Gleeson CJ in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294 at 299 [4] is no longer relevant in view of the legislative change. Since the Tribunal heard the application for review on 8 April 2009 and had handed down its reasons on 8 August 2009, the Act, as amended, has application. 20 Under the amended s 424(3)(a) of the Act, a written invitation issued under s 424(2) must be given to the person in accordance with s 441A. The factual circumstance referred to in s 424(3)(b) is not relevant. However, it should be observed that under the amended s 424(3) there is no requirement, where an oral invitation is given, to comply with any further statutory requirement for notice. Since the appellant claims that questions were asked of him at the hearing, in accordance with the amended s 424(2) there is no basis for the submission that the invitation did not specify the way in which the 'additional information' was to be given nor the period in which it was to be given since these requirements do not exist under the amended legislation. It follows that ground 2 has no merit. 21 The second ground of appeal as contained in the Notice of Appeal is numbered 3. It alleges that the Tribunal failed to comply 'with the mandatory procedure prescribes [sic] by the Act in failing to comply with s 424AA(b)(iv) of the Act'. As to particular (a) to such claim, it is alleged that his Honour failed to establish that 'the Tribunal and the Federal Magistrates Court made error in law and jurisdictional error in relation to relief under s 424A of the migration Act' [sic]. This ground is misconceived. There is no evidence (in the absence of a transcript) that the Tribunal in fact exercised its discretion to adopt the procedures set out in s 424AA of the Act. 22 Secondly, even if it can be said that the Tribunal did exercise its discretion to adopt the procedures set out in s 424AA, a breach of s 424AA does not, of itself, constitute jurisdictional error: SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415 at [74-75]. The provisions of ss 424A and 424AA operate in a complementary fashion (by reason of s 424A(2A)), and the decision to engage the provisions of s 424AA is discretionary in the sense that the Tribunal is not obliged to take a course which engages those provisions but may do so if it considers such a course of action to be appropriate: see SZMCD at [86]. It is s 424A(1) that prescribes what must be done: see SZMCD at [90]. 23 Further the appellant provides no details of the information which he alleges could have been the subject of s 424 A of the Act. In this circumstance particular (a) to the ground of the appeal is meaningless. 24 As to particular (b) it is alleged that the Federal Magistrate 'failed to find that the tribunal [sic] 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'. 25 It is well settled that whilst there is no onus of proof in administrative inquiries and decision making (see Yao-Jingi v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275), it is for an applicant to provide their evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts: see Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214. The decision maker is not required to make the applicant's case for him or her: seePrasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155. Moreover, the choice and assessment of independent information used by the Tribunal is a factual matter for it: see NAHI at [11]-[14]; NBKT v Minister for Immigration and Multicultural Affairs and Another (2006) 156 FCR 419 at [81]. 26 The appellants' claims appear to constitute a complaint in respect of the Tribunal's decision. The Court is not able to review the merits of the findings of the Tribunal: see Minister for Immigration and Ethnic Affairs v Wu Shang Liang and Others (1996) 185 CLR 259 at 272. In these circumstances there is no error which the Court could review. 27 In view of the above, the Court considers that the grounds of appeal could not succeed and accordingly the Court refuses leave to rely upon them. The Court also observes that it has reached such conclusion having considered the merits, as if leave had been granted. Since the claims of the second appellant are dependant upon the result of the first appellant's claims, her claim must also fail. It follows that the appeal is dismissed.

Costs 28 The first respondent seeks an order for costs in the amount of $2,450. The application is supported by an affidavit of Nicola Johnson sworn on 8 February 2010. The Court considers that such quantum is reasonable and will make an order in such amount for costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.