CONSIDERATION
19 At the hearing of the appeal the appellant was unrepresented but assisted by an interpreter. He had filed written submissions. He did not add to those submissions by way of oral argument. The substance of the written submissions was as follows.
20 First, the appellant submitted that the Federal Magistrates Court erred in that it ought to have held that, on the evidence before the Tribunal, it was open to the Tribunal to find that the appellant was a refugee within the meaning of the Act and that the Tribunal had erred in failing to give the appellant the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the appellant's claims were plausible.
21 Secondly, the appellant submitted that the Federal Magistrates Court failed to take into consideration the fact that the Tribunal's decision was unjust and was made without taking into account the full gravity of the circumstances and the consequences of the claim.
22 Thirdly, the appellant submitted that the Federal Magistrates Court erred in not considering that the Tribunal made certain findings of fact (which the appellant identified in the submissions) that (he said) were not available to the Tribunal on the evidence.
23 Finally, in light of the foregoing contentions, the appellant submitted that the Tribunal failed to analyse properly the "future harm" the appellant may face if he had to go back to India. Hence, in the appellant's submission, the Tribunal had committed a serious jurisdictional error by failing to carry out the "real chance" test before dismissing his claim.
24 These submissions raise matters that are not pleaded as grounds of appeal in the notice of appeal. Indeed, they raise matters that were not pleaded or argued as grounds of the application in the Federal Magistrates Court. Moreover, the appellant's written submissions do not address the one ground of appeal that is pleaded in the notice of appeal.
25 The appellant seeks leave to raise these matters now as grounds of appeal. The principles upon which such leave is granted have been discussed recently in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[10] and SZNHY v Minister for Immigration and Citizenship [2010] FCA 51 at [19]-[21]. The appellant was unable to advance any reason why these matters were not raised in the proceeding before the Federal Magistrates Court other than to say that he knows nothing about the law.
26 In my view leave should not be granted to raise these matters now. They do not raise any possible ground of appeal that has reasonable prospects of success. The appellant's written submissions simply seek to agitate findings of fact made by the Tribunal and otherwise invite an impermissible review of the merits of the decision that the Tribunal has made: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. The appellant's submissions do so in circumstances where, far from finding that the appellant's claims were plausible, the Tribunal rejected them on the basis that the appellant was not a witness of truth and had created his claims in order to obtain a protection visa. It is plain from a reading of the record of its decision that the Tribunal gave thorough consideration to all the matters that the appellant had put forward in support of his application. Its findings on credit meant, however, that the factual foundation for the appellant's claims was missing. I should add that, notwithstanding that fact, the Tribunal specifically directed its attention to the appellant's situation (as it found it to be) should he return to India. As I have already noted, the Tribunal found that, should he return to India, the real chance of the appellant suffering harm was remote. Specifically, the Tribunal did not accept that, as a Muslim, the appellant would not have the protection of the authorities should there be random instances of community violence in the future.
27 The ground that was raised by the appellant in his notice of appeal faces an insurmountable difficulty: the ground of the application that the appellant says the Federal Magistrates Court failed to consider was in fact given detailed consideration by that court. This difficulty was specifically raised with the appellant at the hearing of the appeal to identify why, in his submission, the Federal Magistrates Court failed to consider this ground of his application. The appellant's response was: "If I go back to my country I will lose my life". When the matter was put to the appellant again after further explanation, his response was: "I could only say, your Honour, that if I go back to my country my life will be in danger". It is clear that the appellant had no real understanding of the basis on which his appeal had been commenced.
28 The ground of appeal has not been made out by the appellant. The Federal Magistrates Court considered the second ground of the appellant's application in that court and rejected it. I would add that the Federal Magistrates Court did not err in its consideration of that ground. The High Court observed in SZBYR at [18] that, however broadly "information" be defined, its meaning in the context of s 424A is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence; see also VAF at [24].
29 Furthermore, to the extent that the appellant alleges in his ground of appeal that the Tribunal was subject to an undertaking arising independently of the requirements of Division 4 of Part 7 of the Act (and s 424A in particular) to give him an opportunity to make written submissions about the inconsistencies in his evidence, the Federal Magistrates Court noted that there was no evidence to prove the existence of that undertaking: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241. The record of the Tribunal's decision does not show that any such undertaking was given to the appellant. What the record does show is that the Tribunal expressly raised with the appellant at the hearing on 20 July 2009 the various inconsistencies in the appellant's account that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The record shows that the appellant responded to those matters at that hearing. The record does not show that the appellant asked for additional time to comment on or to respond to those matters or that he requested an adjournment for that purpose, even though an invitation in those terms had been made to him. In the circumstances it is not necessary for me to consider whether an undertaking of the kind postulated can arise independently of the requirements of Division 4 of Part 7 of the Act: see s 422B(1).