SZOHC v Minister for Immigration & Citizenship

Proceedings before the Federal Magistrates Court 6 The appellants relied on an amended application filed on 9 June 2010, alleging a failure to address the appellant's claims in the way they were made. Three particulars were referred to: (1) The statement in the appellant's protection visa application that he was an active member of the BJP. (2) The statement in the appellant's protection visa application that he was assaulted by Congress party members because of his involvement with the BJP. (3) The Tribunal did not consider the way he claimed the Urban Co-operative Bank's chairman, Mr Surenda Rajput, was a Congress supporter, targeted the appellant and demanded repayment of the loan in the hope of getting the appellant to change his political view. 7 The court convened a hearing of the application on 21 June 2010. Her Honour, Emmett FM, delivered ex tempore reasons for judgment, dismissing the application with costs. 8 Her Honour concluded at [53]: 'A fair reading of the Tribunal's decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant's responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal's decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.'

Notice of Appeal to this Court 9 The notice of appeal, filed on 8 July 2010, contains three grounds which may be summarised as follows: (1) The Federal Magistrate failed to find that the Tribunal acted in a manifestly unreasonable way when dealing with the appellant's claims and ignoring persecution and harm in terms of s 91R of the Migration Act 1958 (Cth) ('the Act'). (2) The Federal Magistrate dismissed the application below without regard to legal and factual errors committed by the Tribunal. (3) The Federal Magistrate did not take into account that the Tribunal decision was unjust and made without considering the gravity of the appellant's circumstances.

Consideration 10 The Minister submitted that none of the appellant's three grounds were raised, in their terms, in the court below and that, in order to raise new grounds on appeal, the appellant must demonstrate that it is expedient and in the interests of justice to allow the grounds to be raised: O'Brien v Komesaroff (1982) 150 CLR 310 at 319; see also Coulton v Holcombe (1986) 162 CLR 1 at 7. The Minister submitted that it is not expedient and in the interests of justice to allow the new grounds to be raised on the basis that they do not have reasonable prospects of success: NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51 at [166].

Ground one: unreasonableness and s 91R of the Act 11 The Minister submitted that this ground is an attempt to engage the Court in impermissible merits review. 12 The Tribunal did not accept that the appellant's claims were true. Section 91R of the Act restricts the circumstances in which a decision maker may find that Article 1A(2) of the Refugees Convention applies to a person. The appellant's complaint here is, presumably, that the Tribunal wrongly excluded some element of persecution (subss 91R(1) and (2)) from its analysis by taking too broad a view of the restrictions that s 91R imposes. 13 However, there is no apparent basis for any such complaint. The Tribunal did not purport to rely on s 91R; it did not identify any 'persecution' feared by the appellant and then discount it for any of the reasons mentioned in subs 91R(1); and it did not have to consider any conduct engaged in by the appellant in Australia for the purposes of subs 91R(3). 14 Any complaint that the Tribunal's decision is invalid for Wednesbury unreasonableness (as illuminated in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223), is simply not made out on all the material before the Court. 15 I agree with these submissions.

Ground two: legal and factual errors committed by the Tribunal 16 The Minister submitted that a consideration of the Tribunal's discussion of the law concerning the test of whether the appellant had a well founded fear of persecution discloses no error. To the extent an error of fact is alleged, it is a well-established principle that even if a factual finding is incorrect that is not sufficient, in and of itself, to constitute jurisdictional error: see MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [28]; Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 at [31] per Finn, Marshall and Mansfield JJ; and NAAP v Minister for immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 at [37] per Gray, Moore and Weinberg JJ. 17 In so far as the Tribunal's s 424A obligations were engaged with respect to the material at para [66], and specifically the independent country information about Surenda Rajput, the Minister submitted that the Tribunal complied with its statutory obligations. 18 Pursuant to subs 424A(2A) the Tribunal is not obliged under s 424A 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 s 424AA. 19 In this case, the Tribunal did so. At the hearing, the Tribunal indicated to the appellant it was going to give him information which it considered would be the reason, or part of the reason, for affirming the delegate's decision. The Tribunal indicated it would explain the information so the appellant understood its relevance and would ask the appellant to comment or respond. The Tribunal told the appellant that he could seek additional time to comment or respond, and, if he did so, the Tribunal would consider whether to adjourn the review (at [49] and [60]). The Tribunal then: (1) Put to the appellant that the bank had effectively shut down in 1996. Mr Surenda Rajput had been the chairman but he had been facing cases because of the money he had siphoned off from the bank (at [52]). (2) Put to the appellant that this information made it very difficult to believe the appellant's claims that he had been borrowing money from the bank and that he had been persecuted because he had borrowed money from the bank in 2008 and 2009 (at [53]). 20 The appellant has not provided, and did not tender in the court below, any evidence, such as in the form of a transcript, to contradict the Tribunal's record of the hearing. The Tribunal's decision record demonstrates compliance with subss 424AA(a) and (b) with respect to this country information. The learned Magistrate was correct in so finding at [47]. 21 I agree with these submissions.

Ground three: the Tribunal decision was unjust and made without considering the gravity of the appellant's circumstances 22 The Tribunal rejected the appellant's claims because it did not believe he was telling the truth. This ground is an assertion that the Tribunal should have accepted the appellant's claims and, because it did not, the decision was unjust. However, the Court is not concerned with whether the decision was unjust, only whether it was lawfully made. 23 In so far as this ground is intended to allege error by the learned Federal Magistrate in finding no failure to consider any integer of the appellant's claims, the Minister submitted that her Honour was correct in so finding. (1) Regarding particulars (a) and (b) of the amended application below, although in his protection visa application statement the appellant claimed to have been an active BJP member, the appellant gave oral evidence to the Tribunal that he did not hold any position in the BJP. When the Tribunal put to the appellant his original written claims, the appellant said he had been 'nothing like that' (at [47]). The Tribunal addressed this claim as presented, finding that there was no real chance the appellant would be threatened for his real or imputed political opinion (at [68]). (2) Regarding particular (c) of the amended application below, the Tribunal did not accept that the appellant was truthful in these claims. Specifically, it did not accept that the appellant had a loan with the bank, nor that the bank required the appellant to repay the loan because the chairman was a Congress supporter whereas the appellant was a BJP supporter and the chairman wanted the appellant to change sides (at [68]). 24 There is no indication that the Tribunal ignored any claim that it was jurisdictionally obliged to consider: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55] - [63] and [68]. All that has occurred is that the Tribunal has not accepted the appellant's claims - and that is quite different from not considering them.

Conclusion 25 The appeal must be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.