SZNXQ v Minister for Immigration and Citizenship

Qualification for a protection visa 6 The criteria for a protection visa are set out in s 36(2) of the Migration Act 1958 (Cth) (Migration Act). Section 36(2)(a) provides that the applicant must be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Section 91R adds further criteria. In short, to qualify for a protection visa the husband had to show, amongst other things, that (a) he had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion; (b) he was unable or, because of the fear, unwilling to avail himself of the protection of his own country; (c) the reason or reasons is or are the essential and significant reason or reasons for the persecution; (d) the persecution involves serious harm to him; and (e) the persecution involves systematic and discriminatory conduct. (see Migration Act ss 36(2)(a) and 91R(1)). 7 An inclusive, but not exhaustive, definition of serious harm appears in s 91R(2). 8 A well-founded fear is a genuine fear founded on a real chance of persecution: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. A real chance is one that is not remote or far fetched and may be below fifty per cent: Ibid. 9 The only alternative criterion is contained in s 36(2)(b). It extends the protection to a non-citizen who is a member of the same family unit as a non-citizen who meets the eligibility criterion in s 36(2)(a) and who holds a protection visa. It was upon this basis that the second appellant (the wife) rested her claim.

The Minister's decision 10 The Minister's delegate found that: [w]hen it came to detailed questioning about his claims, the applicant became very evasive, unclear, unwilling to provide a straight forward answer and was very hesitant in then providing some answers. 11 He was not satisfied that he had been persecuted by Muslims or, in the absence of any documentary evidence, that he had been a member of the BJP. He also found that even if the husband had experienced the troubles he claimed, he could have relocated.

The Tribunal proceedings 12 The Tribunal questioned the husband about his claim and, before it concluded the hearing, asked him if he had any other claims or matters he wished to put before it. He replied in the negative. In response to the Tribunal's questions the husband informed the Tribunal that he had been a member of the BJP for five years - from 1985 to 1990 - was not a member of any branch and had never held a position in the party. He claimed to have canvassed in the villages on behalf of the BJP, but when asked about what reasons he gave people to support the party, he said he simply replied that the BJP was good and if they voted for the BJP it would be good for them. When pressed to give detail about the party platform he told the Tribunal he had no more information. 13 He gave an account of having been threatened with violence and his wife attacked and threatened with rape after a clash between Hindus and Muslims in 1998, and of the killing of six Muslims in his village in 2002. Nonetheless, he informed the Tribunal that he remained in his village the entire time since then. When asked why he did not live elsewhere in India he replied that he was fearful, that even politicians with bodyguards get killed, so that his life as an ordinary person would be at risk. Although he acknowledged that Muslims comprised only 9 per cent of the population of Gujarat, he said that the whole world faced the threat of terrorism and he has the same fear. When asked why he did not get police assistance if he felt threatened, he said most people in the village belonged to the Congress Party and the police are influenced by this, so there was no point. 14 The Tribunal found the husband's claims that he had been persecuted in India because of his membership of the BJP "extremely vague" and noted that he produced no evidence to support his contention that he had experienced difficulties in India due to his political opinion nor even an old party membership card. It was satisfied that the appellant had no knowledge of the BJP, its political platform, or what it stood for, and had no political profile at all. Whilst the Tribunal accepted that he may have had some confrontation with other farmers in his area who happened to be Muslim, it did not accept that he had a well-founded fear of harm for reason of his religion and concluded that there was not a real chance that he would be subjected to persecution for a Convention reason if he were to return to India either now or in the foreseeable future relying on the fact that he and his wife stayed in the same village for many years after the confrontation with Muslim farmers, to conclude that he did not have a well founded fear of serious harm amounting to persecution for a Convention reason. 15 Moreover, on the basis of the independent information before it, the Tribunal was not satisfied that there was inadequate or ineffective State protection in Gujarat and found that the appellants could, in any event, reasonably relocate within India to avoid the persecution that the husband claimed to fear. 16 What is more, although the Tribunal acknowledged that terrorist incidents have occurred throughout the world, including India, it found that there was no real chance the appellant husband would be harmed by terrorists, either because he was a Hindu or because of his anti-Muslim activities or for any other Convention related reason. 17 Finally, the Tribunal determined that as the wife's application was dependent on the success of her husband's, it must also fail. 18 It should be observed that after the hearing and two days after the Tribunal had made its decision, the husband forwarded to the Tribunal by fax a letter from a member of the Gujarat Legislative Assembly dated "8-6-09", which certified that he had known the husband for five years but did not mention how he had come to know him. It did not describe the nature or extent of their contact and said nothing about any association he may have had with the BJP. It did not even indicate whether the author was a member of the party. When the husband sent it to the Tribunal he did not explain the nature of his relationship with the author. Even if the letter had been before the Tribunal it would have added nothing to the appellants' case.

The proceedings in the Federal Magistrates Court 19 By application filed in the Federal Magistrates Court of Australia on 18 September 2009, the appellants sought judicial review of the Tribunal's decision. 20 Section 474 of the Migration Act (with s 5) defines a migration decision (which includes a decision to refuse a visa) as a "privative clause" decision. The only way in which it can be challenged is if it can be shown that it was affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476. 21 In an amended application filed on 9 November 2009 the appellant raised four grounds, which can be summarised as follows: (1) The Tribunal failed to comply with s 424A of the Migration Act (concerning the obligations of the Tribunal to give clear particulars in writing of any information it considers would be the reason, or part of the reason, for affirming the decision under review); (2) The Tribunal failed to comply with s 424 of the Migration Act (relating to the power of the Tribunal to obtain relevant information); (3) The delegate and the Tribunal failed to consider the appellants' evidence and therefore breached the rules of natural justice; and (4) The Tribunal placed undue weight on the independent information. 22 The application was heard by Scarlett FM on 30 November 2009. His Honour reserved his decision and delivered judgment on 14 December 2009. The husband appeared at the hearing and told the Federal Magistrate that he had authority to speak on behalf of his wife. He addressed the court only on the third ground, making no submissions in support of the remaining three. 23 In respect of ground 1, the Federal Magistrate found that the only information before the Tribunal was that which was excluded from s 424A(1) of the Migration Act by reason of s 424A(3). 24 In respect of ground 2, the Federal Magistrate found that there was no request for information sent by the Tribunal which engaged the relevant provisions of s 424 of the Migration Act. 25 As for ground 3, the Federal Magistrate noted that it was not the role of the court to review the decision of the delegate, and that this ground was otherwise an attempt at impermissible merits review. Nonetheless, his Honour noted that there was a detailed account of the nature of the appellants' case in the Tribunal's reasons, that the Tribunal had asked a number of questions and the husband had provided a number of answers, which were recorded in those reasons, and that the Tribunal had afforded the husband an opportunity to make further submissions, which opportunity he declined. His Honour was satisfied that the Tribunal had considered the husband's evidence, there was no evidence of a failure to afford natural justice and dismissed the ground. 26 With regard to ground 4, the Federal Magistrate stated that it is well-established that the Tribunal may rely on independent country information and give it such weight as it thinks fit. He referred to the fact that the Tribunal used Wikipedia as the source of some of the information. Specifically, that concerned the population of Gujurat and its religious composition. The Tribunal also mentioned that it could find no evidence that members of the Hindu majority had been persecuted in Gujarat. In any event, the Federal Magistrate considered that it was of significance that the Tribunal specifically discussed the information it had drawn from the Wikipedia entries and gave him an opportunity to make any submissions he wished about it. 27 Having found no jurisdictional error in the Tribunal's decision, his Honour dismissed the application.

Appeal to this Court 28 The appeal to this court is in the nature of a re-hearing: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507; MZWVH v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1016 at [14]. However, it remains necessary for the appellants to show that the Federal Magistrate fell into error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at 436 [25] per Allsop J. In effect, this means that in order to succeed the appellants must point to jurisdictional error on the part of the Tribunal. 29 The appellants plead the following grounds of appeal in their notice of appeal (without alteration): (1) The Federal Magistrate erred in accepting that the Tribunal view that the applicants will not face persecution if they return to their country of origin. (2) The Federal magistrate erred in finding that the applicants had identified viable arguable grounds of appeal and jurisdictional error of the Tribunal. (3) The Tribunal did not permit to give my evidence in accordance with section 425 of the Migration Act of 1958. (4) The Federal Magistrate failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of applicants circumstances and consequences of the claims. 30 As can be seen from these grounds, in part they seek to agitate the merits of the Tribunal's decision. To the extent that before the Federal Magistrates Court the appellants sought to raise matters that might conceivably amount to jurisdictional error those matters are not repeated in these grounds. In particular, there is no complaint now made about the Federal Magistrate's findings with respect to compliance with sections 424A or 424 of the Migration Act.

Submissions of the appellant 31 At the hearing of the appeal before me, the husband told me, through his interpreter, that he wanted to say nothing about the appeal, he merely wanted to impress upon me that his claim was true. I explained to him the limited basis upon which this Court could intervene. My explanation was interpreted to him in his own language and he appeared to understand.

Ground 1: The Federal Magistrate erred in accepting that the Tribunal view that the applicants will not face persecution if they return to their country of origin. 32 Ground 1 affords no basis for judicial review. It seeks to agitate the merits of the Tribunal's decision and does not invoke any jurisdictional error.

Ground 2: The Federal Magistrate erred in finding that the applicants had identified viable arguable grounds of appeal and the jurisdictional error of the Tribunal. 33 Ground 2 does not make sense. Presumably there is a "not" missing before "identified". However, even interpreting the ground in this way, so that the alleged error is in the finding of the Federal Magistrate that the Tribunal decision was not affected by jurisdictional error, the ground is without merit. I can discern no error in the Federal Magistrate's decision. 34 I note that the Federal Magistrate stated in his reasons that the main complaint the husband had at the hearing in fact appeared to be unrelated to any of the grounds in his amended application. That was his concern that the Tribunal did not consider what he referred to as a letter from the BJP, which he considered was an important piece of evidence relating to his membership of that party. The Federal Magistrate considered that letter, extracted it in full in his reasons and described it in these terms: The letter is a character reference. It bears no reference to the first applicant's membership of the BJP and it has no probative value at all as far as the first applicant's refugee claim is concerned. 35 I have already referred to this letter. There is no doubt that the Federal Magistrate was correct in the view he formed. 36 His Honour did not confine his reasons to a consideration of the grounds that were pleaded but went on to examine the Tribunal decision in search of any conceivable jurisdictional error, indeed any arguable breach of the Migration Act. He found none and neither do I.

Ground 3: The Tribunal did not permit to give my evidence in accordance with s 425 of the Migration Act of 1958. 37 Section 425 of the Migration Act provides: (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. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicants' favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. 38 Whether or not there was a possible breach of s 425 of the Migration Act was an issue that the Federal Magistrate raised at the conclusion of his reasons as he combed the Act for arguable breaches. There is no substance to this ground of appeal either. By letter dated 26 June 2009 the Tribunal invited the appellants to appear before it. The letter invited them to give their evidence by video conference from Griffith on 18 August 2009. On 12 July 2009 the husband responded to the invitation in writing, agreeing to take part in the hearing, specifying his need for an interpreter in the Gujarati language. 39 I pause to note that the wife did not complete the form. Because her claim was entirely dependent on the success of her husband's, this is understandable. However, she could, had she chosen to do so, given evidence which might have corroborated his claim. Because there was no explanation for her absence, the fact that she did so could have given rise an inference that nothing she could say would have assisted the claim (Jones v Dunkel (1959) 101 CLR 298), but the Tribunal did not draw this inference and it is not for me to do so. 40 On 20 July 2009 the husband telephoned the Registry to ask for the hearing to be changed to a telephone conference as he was then working in the Northern Territory. The registry officer informed him that the location of the video conference could possibly be moved to Darwin and he indicated he was happy to travel to Darwin to participate in it. On 24 July 2009 the Tribunal wrote again to the appellants in the following terms, and then set out the new hearing details: I am writing about the applications for review made by you in relation to decisions to refuse to grant Protection (Class XA) visas. On 26 June 2009 we sent a letter inviting you to attend a hearing at the Tribunal on 18 August 2009 to give evidence and present arguments relating to the issues arising in your case. On 20 July 2009 the Tribunal received a request that the hearing be rescheduled as a video conference in Darwin NT. The Presiding Member has agreed to the request and the hearing has been rescheduled. This also necessitated a change in the hearing time. 41 As I said earlier the new hearing details were set out in that letter. On 18 August 2009 the husband appeared before the Tribunal by video conference from Darwin, as arranged. The Tribunal hearing record shows that a Gujarati interpreter was present. The Federal Magistrate inferred that he or she interpreted for the husband at that hearing and there is no reason whatsoever to conclude that she did not help the husband to understand the proceedings and the questions the Tribunal put to him. The record also shows that the hearing lasted for an hour. The husband was the only person interviewed. The Tribunal's record of its reasons show that he gave evidence and was given every opportunity to present arguments relating to the issues arising in relation to the decision under review.

Ground 4: The Federal Magistrate failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of applicants circumstances and consequences of the claims. 42 As the respondent pointed out, this ground does not contain any particulars and appears to be a complaint about the merits of the Tribunal's decision. It is well established, as I explained to the husband himself at the hearing of the appeal, that it is not the role of the Court to review the merits of the Tribunal's decision. Whether or not the Tribunal's decision was unjust was not the Federal Magistrate's concern, nor is it the concern of this Court, unless any injustice involved jurisdictional error. Whilst this unquestionably is disappointing to asylum seekers, including the appellants in this case, the law requires that the courts only review the Tribunal's decision-making for errors that go to jurisdiction. 43 In any event, his Honour considered whether there was any basis for the contention that the appellants made and found that there was not. He was correct to do so. The Tribunal in fact considered the claims that the appellants made and determined the matter on the evidence that was before it. Its findings were open to it on the material it had. Consequently this ground is not made out either.

Conclusion 44 As no appellable error has been identified in the judgment of the Federal Magistrate, and no jurisdictional error disclosed in either the decision of, or the procedures adopted by, the Tribunal, and none is apparent, I have no alternative but to dismiss the appeal.

Orders 45 I therefore order that: (1) The appeal is dismissed. (2) The appellants pay the Minister's costs fixed in the amount of $2,475. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.