SZOOM v Minister for Immigration and Citizenship

JUDGE: FLICK J DATE OF ORDER: 25 FEBRUARY 2011 WHERE MADE: SYDNEY

1. The Notice of Appeal as filed on 23 November 2010 is dismissed. 2. The Appellant is to pay the costs of the First Respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA NSW DISTRICT REGISTRY GENERAL DIVISION NSD 1607 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

JUDGE: FLICK J DATE: 25 FEBRUARY 2011 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Appellant is a citizen of India. 2 He arrived in Australia on 25 June 2009 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 30 December 2009. A delegate of the Minister refused that application on 22 March 2010. An application for review was then made to the Refugee Review Tribunal on 12 April 2010 and on 13 July 2010 that Tribunal affirmed the decision not to grant the visa. 3 An Application for review was then filed with the Federal Magistrates Court on 13 August 2010. The Grounds upon which that Application were advanced were there expressed (without alteration) to be as follows: 1. THE RRT HAS COMMITTED JURISDICTIONAL & LEGAL ERROR 2. THE CASE OF THE APPLICANT WAS NOT DEALT IN ACCORDANCE WITH LAW 3. THE CASE SUFFERS FROM SERIOUS LEGAL MISREADINGS An affidavit was filed on the same day in support of the Application. A further document was filed with that Court on 12 October 2010, variously described as either an "Amended Application" or an "Additional document". 4 The Federal Magistrates Court dismissed the Application: SZOOM v Minister for Immigration and Citizenship [2010] FMCA 911. 5 There was filed in this Court on 23 November 2010 a document described as either a "Notice of Appeal" or a "Draft Notice of Appeal". The "Grounds of Appeal" there set forth were expressed (again without alteration) as follows: 1. That the Learned Federal Magistrate has failed to determine the actual harm to which the appellant is faced with, as such the decision of the respondents suffers from legal and jurisdiction error because the respondents have failed to go into the evidence of the applicant, based on the file and decision in question of the respondents violates the principle of natural justice, moreover spirit laid down by UNHCR has been brushed aside rather a decision was made which was convenient to the respondents. The decision of the RRT is vague and nothing has been added by means of reasons and statement of decisions. As such the case requires the judicial interference of this honorable court. 2. That the Appellants submits that this fact can be verified from the US country Information , and from other international media , and other sources. The appellant has faced real harm to his life as the applicant belongs to Shiromani Akali Dal ( Amritsar). Our party has undergone lot of persecution, our leader was arrested many times, his bail was cancelled and was remanded in to police custody indefinitely, This can be found in the reports of the amnesty International. His passport was confiscated and likewise many other leaders of Khalistan movement were made to undergo detentions, harassments and there liberty was taken away. The applicant in the statement of claim has already submitted full facts and circumstances. The applicant in the statement of claim has already submitted full facts and circumstances. The applicants own right of movement was restricted as the appellant was continuously chased by Indian authorities; all these matters were not taken into consideration. This constitutes a legal jurisdictional error coupled with the legal error as many of the questions went unanswered. The decision was made in arbitrary manners, 3. That the Respondents did not applied the proper law and procedure , this has resulted in the error of the law . The applicant/appellant has fulfilled all four key elements of being a refugee , as the applicant/appellant has submitted in his statement of claim . 6 The Appellant appeared before this Court on 8 February 2011. He was unrepresented but had the assistance of an interpreter. Whether an interpreter was truly required may be open to question. The Appellant's Application for a Protection visa stated that he could "speak, read or write" English and a document provided in support of the claim stated that he was "well versed with the English …". Whether an interpreter was necessary or not may be left to one side - an interpreter was requested and provided. 7 However the proceeding in this Court is to be described, it is dismissed.

The Claim to Refugee Status 8 The Application for a Protection visa made on 30 December 2009 was supported by a three page document headed "My Claim". 9 That document set forth the present Appellant's claims to have seen "many miseries" and his participation in "the young Sikh student movement". He states that he was "very much interested in the political welfare of the Sikhs communities all over the India". He claims to have been "discriminated due to my political base couple with my religion". The document further states that the Appellant was a supporter of the Khalistan movement and that he had been followed by "the secret agencies". Claims were advanced that he had been "interrogated by the security agencies" and that he had been arrested and detained. By reason of the persecution he claims to have suffered, he "decided to flee from the country". 10 A Case Officer within the Department on 22 February 2010 requested the Appellant to attend an interview to assist in the assessment of the claims being advanced. He did not attend that interview and the decision was made on 22 March 2010 to refuse the application. The delegate was clearly perplexed at the failure to attend an interview. A copy of the decision and the reasons for the decision were forwarded to the Appellant on the same day. Those reasons stated in part: There has been no opportunity to test the credibility of the claims. It is considered implausible that an applicant with such serious claims would forego the opportunity to discuss his case if his claims were genuine. 11 Following the application made to the Refugee Review Tribunal for review of the delegate's decision, the Tribunal wrote to the Appellant on 29 April 2010 seeking additional information. On 23 May 2010 the Appellant wrote to the Tribunal stating (inter alia) that "the applicant was detained many times, on different places" and that he had been "blindfolded, and was taken to many, places … This is the matter as to how the applicant is not knowing the places of his detention …". Given the form in which the letter is expressed, it was presumably written by someone on his behalf. 12 Section 425 of the Migration Act imposes upon the Tribunal the obligation to extend an invitation to an applicant to appear and to give evidence and that section further identifies the circumstances in which such a hearing may be dispensed with. That section provides as follows: Tribunal must invite applicant to appear (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 applicant's 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. 13 The Appellant was, accordingly, invited to appear before the Tribunal by way of a letter dated 15 June 2010. A "Response to Hearing Invitation" completed and signed by the Appellant indicated that he did not wish to attend the hearing scheduled for 13 July 2010. The Tribunal was then entitled to proceed in the absence of the Appellant: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, 228 CLR 294. Gleeson CJ there observed: [6] … Section 425 requires the Tribunal to invite the applicant to appear before the Tribunal. That requirement is subject to exceptions. One exception is where the applicant consents to the decision being made without the applicant appearing before the Tribunal (s 425(2)(b)). The invitation to attend before the Tribunal and the Appellant's indication that he would not take part in the Tribunal hearing constituted "consent" for the purposes of s 425(2)(b) of the Migration Act 1958 (Cth). 14 The Tribunal's reasons for decision as signed on 14 July 2010 provide in relevant part as follows: FINDINGS AND REASONS [27] In the Tribunal's view, it is appropriate to take a decision in relation to this application. The applicant was invited to attend the Tribunal for a hearing but chose not [sic] attend. He also did not attend an interview to which he was invited with the Department at which he could have provided information about his claims. [28] The Tribunal finds that the applicant is a national of India and no other country. He has provided evidence of a passport issued in his name by Government authorities of that country consistent with his clam of being a national. This is the country against which his claims should be assessed. [29] The material supplied by the applicant gives an overview of his political beliefs but is very scant and lacks details as to harms which he has experienced in the past. He has not provided any details of when these events occurred, what agencies were involved or what he expects could occur on return. He claims only the very general fear that he will be killed on return. The applicant did not attend the Tribunal to give evidence regarding his claims which could have provided further information. When further information was sought, he has indicated he cannot recall details of the claimed past periods and places of detention, other than that they were numerous and resulted in his being mistreated. While there is a suggestion that the applicant's memory was affected by these events, there is no further evidence of this. [30] The evidence is too general in nature and lacking in detail as to claimed past events to be seen as reliable in the Tribunal's view. The applicant has not taken an opportunity to provide further detail. While there is evidence of a continuing commitment among members of the Shiromani Akali Dal (Amritsar) to pursue action for the establishment of an independent Sikh homeland, the Tribunal is not satisfied that the applicant is person identified with that group as he has claimed, nor that he has ever suffered harm as a result as he has claimed. [31] On the evidence available to it, the Tribunal is not satisfied that the applicant is a person who has a real chance of experiencing harm for any reason should he return to India, either at the present time or in the foreseeable future. The applicant is not, therefore, a person owed protection obligations by Australia under the Refugees Convention. Neither has he claimed to be a member of the same family unit of a person owed protection obligations. This being the case, he cannot satisfy the prescribed criteria for the grant of a Class XA visa and he must be refused the grant of such a visa under s.65 of the Act. The delegate's decision to this effect should be affirmed. 15 Given the limited material available to both the delegate and the Tribunal, and the fact that the Appellant did not attend either the interview before the delegate or the hearing before the Tribunal, it is perhaps not surprising that the application for the visa was unsuccessful. Such has been the fate of other cases lacking material substantiating the claims being made: eg, NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 per French, Emmett and Dowsett JJ.

The Resolution of the Claims and the Appeal 16 The Appellant's appeal to this Court faces a number of difficulties. 17 First, it was for the Appellant to present to the delegate and the Tribunal the factual material in support of his claims to a Protection visa. The manner in which a claimant may wish to advance his claims, and the documents or other materials he may wish to rely upon in support of those claims, is primarily a matter for the claimant alone. 18 Thus, in Kioa v West [1985] HCA 81, 159 CLR 550 at 587, Mason J (as His Honour then was) said: The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. And, when addressing proceedings before the Refugee Review Tribunal in Abebe v The Commonwealth of Australia [1999] HCA 14, 197 CLR 510 at 576, Gummow and Hayne JJ have similarly stated: [187] … The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out. Subsequently, in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, 197 ALR 389 at 405, Kirby J again stated: [78] … The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances … The proposition is consistently repeated. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, 228 CLR 152 at 164, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ thus said: [40] … it is for the applicant for a protection visa to establish the claims that are made … See also: Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123 at [45], 113 ALD 46 at 55 per Spender, Moore and Foster JJ. 19 The fact that a claimant may be unrepresented and may not be either familiar with the legal requirements to be satisfied or may not be fluent in the English language cannot transfer the responsibility of substantiating a claim from himself to those entrusted with the responsibility of determining the claim. 20 Standards of perfection are, nevertheless, not to be expected. Thus, if the facts are adequately presented for determination, it matters not that a claimant may (for example) have failed to identify the correct Convention "label" on the claim being advanced: SGBB v Minister for Immigration and Multicultural and Indigenous Affairs ("SGBB") [2003] FCA 709 at [17], 199 ALR 364 at 368 to 369 per Selway J. As His Honour there observed, "the application is [not] to be treated as an exercise in nineteenth century pleading". See also: SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 3 at [51], 150 FCR 448 at 464 per Madgwick J. Moreover, the difficulties confronting an applicant for refugee status have to be recognised: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J. His Honour there expressed this concern as follows: Proof of persecution in the context of an application for refugee status is a matter of some complexity. As Grahl-Madsen has noted (The Status of Refugees in International Law at 145-146), in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for, since it is a well-known fact that a person who claims to be a refugee may have difficulties in proving his allegations …; and it would go counter to the principle of good faith in the interpretation and application of treaties if a contracting state "should place on a suppliant a burden of proof which he, in the nature of things, could not possibly cope with". This should not, however, lead to "an uncritical acceptance of any and all allegations made by suppliants". In limited circumstances, when undertaking its function of reviewing the delegate's decision, the Tribunal may itself be required to cause an obvious inquiry to be undertaken: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, 259 ALR 429. 21 There are also limited circumstances in which a claim should be considered even though it may not be clearly articulated: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) FCAFC 263, 144 FCR 1 at 18 to 19. Black CJ, French and Selway JJ there expressed the circumstances in which such a case may arise as follows: [58] The review process is inquisitorial rather than adversarial. The tribunal is required to deal with the case raised by the material or evidence before it … There is authority for the proposition that the tribunal is not to limit its determination to the "case" articulated by an applicant if evidence and material which it accepts raise a case not articulated … By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant … It has been suggested that the unarticulated claim must be raised "squarely" on the material available to the tribunal before it has a statutory duty to consider it …The use of the adverb "squarely" does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the tribunal when it is apparent on the face of the material before the tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the tribunal. Their Honours there also went on to approve the observations of Selway J in SGBB. See also: B34 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 871 at [31] per French J; NBJA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1245 at [18] to [21] per Edmonds J; SZMPF v Minister for Immigration and Citizenship [2009] FCA 908 at [20], 111 ALD 412 at 418 to 419. 22 Factual material provided in support of any particular claim may be scanty or extensive. Even a claim supported by scanty material may be sufficient to make out a claim. But it remains the case that such materials as are relied upon need not necessarily be accepted by a decision-maker. The "mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is 'well founded' or that it is for reasons of political opinion": Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22, 191 CLR 559 at 596 per Kirby J. 23 But considerations as to when the Tribunal should consider a claim not articulated or should itself consider making inquiries are considerations not relevant to the present proceeding. The simple fact is that the Appellant articulated the claim he sought to have resolved and advanced his claim upon a limited factual foundation. But he failed to substantiate it - despite being extended the opportunity to do so. 24 In the present proceeding, the Appellant was invited by both the Minister's delegate and the Tribunal to attend in person to assist in the resolution of his claim. In circumstances where the material provided is "very scant" and lacking in detail, a failure on the part of a claimant to either attend an interview or a hearing before the Tribunal and thereby expand upon the factual basis of his claim is (perhaps) inexplicable. The failure to attend before the Tribunal in the present proceeding is even more open to question given the observations made by the delegate as to the failure to attend an interview. When asked during the course of the appeal to this Court as to why he did not attend either an interview or the hearing before the Tribunal, the Appellant simply stated: "I don't want to say anything." One inference open to be drawn is that the Appellant may have considered that the claim being made in writing was as good as he could present it and that any questions put to him orally could only prejudice his case. 25 No error is exposed in circumstances such as the present where a claimant declines an invitation to attend a hearing before the Tribunal and the Tribunal thereafter remains unsatisfied as to the claim being advanced: cf. NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5] per Beaumont, Merkel and Hely JJ; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73 at [24] per Black CJ, Sundberg and Bennett JJ. 26 The importance for a claimant to present to both the delegate and the Tribunal the factual material upon which he seeks to advance his claims remains paramount. It is the delegate and the Tribunal that have been entrusted by the legislature with the task of making findings of fact. It is no part of the task entrusted to the Federal Magistrates Court or this Court to make findings of fact. Within the constraints imposed by the Migration Act, the role of the Federal Magistrates Court is to determine if there is jurisdictional error. The role of this Court is to resolve an appeal from the decision of the Federal Magistrate. 27 A second difficulty confronting the Appellant in this Court is the fact that there is much to be said in support of a "Response" as filed on behalf of the Respondent Minister in the Federal Magistrates Court on 27 August 2010. That "Response" stated in part that the "application for judicial review does not provide any particulars or any legal ground of review". The form of the Application as filed on 13 August 2010 failed to identify: the jurisdictional or legal error referred to; the manner in which the "case" had not been dealt with in accordance with law or the law referred to; or the "serious legal misreadings". An affidavit, however, as also filed on 13 August 2010 did provide some guidance as to the arguments the Appellant sought to have resolved by the Federal Magistrates Court. 28 It was more to the affidavit that the Federal Magistrate (quite properly) directed his attention rather than the "grounds" as set forth in the Application. The reasons for decision of the Federal Magistrate address in turn each of the issues raised for consideration. In doing so, no appellable error is discernible. Nor is appellable error discernible in the manner in which the Federal Magistrate dismissed the "Amended Application" as filed on 12 October 2010. 29 The greater the absence of clarity as to the grounds of review sought to be resolved by a Federal Magistrate, the greater may be the difficulty for an appellant in this Court to establish appellable error. 30 A third difficulty is that it is far from clear that the Notice of Appeal as filed in this Court raises grounds which can properly be considered. Although the first purported Ground is directed to an error said to have been committed by the Federal Magistrate, the Ground involves in part arguments not previously advanced for consideration before the Federal Magistrates Court. It also seeks (at least in part) merits review. Nor was there any expansion during the course of the hearing of the appeal as to what was said to constitute the "violat[ion of] the principles of natural justice". The second Ground of Appeal is not directed expressly to any error said to have been committed by the Federal Magistrate and is a further invitation to impermissibly review the factual merits of the claims. The final Ground, again, is also not directed to any error said to have been committed by the Federal Magistrate but rather an error said to have been committed by the Minister and the Tribunal. The Appellant was unable to assist in the identification of "the proper law and procedure" or the "error of the law" to which reference is made. The only assistance provided by the Appellant was that he was intending to refer to the fact that his claim had not been given "proper consideration". But he failed to explain what a "proper consideration" of his claim entailed. Albeit perhaps inadvertently, the third Ground of Appeal was susceptible of embracing a jurisdictional error - albeit an unidentified jurisdictional error. But no such error is discernible. The Tribunal did not commit jurisdictional error by proceeding in the absence of the Appellant and in reaching the findings of fact that it did. 31 As in other migration appeals coming before this Court, the present Appellant maintained that he drafted the Notice of Appeal, albeit with the assistance of "friends". Given the inability to explain what was intended to be conveyed by the Grounds of Appeal, the actual involvement of the Appellant in the drafting of the Notice of Appeal may be doubted. If vaguely expressed Grounds of Appeal are not explained, any ability of this Court to resolve the grievances of an appellant is seriously impeded. An invitation to the Appellant to place to one side the drafting of the Notice of Appeal and to explain in his own words the error said to have been committed by the Federal Magistrate led only to the statement that the Appellant had "no knowledge of the law" and that the Magistrate had not given his case "proper consideration". 32 Notwithstanding deficiencies in the manner in which the Notice of Appeal has been drafted, the decision-making process has been reviewed from the outset. No jurisdictional error is discernible - irrespective of whether or not any such error was advanced for resolution before the Federal Magistrate.

Conclusions 33 Given the dearth of factual material available to the delegate and the Tribunal, the adverse findings as made by both the delegate and the Tribunal were findings open to be made. No reviewable error is discernible in either the making of those findings or the manner in which the Tribunal proceeded. 34 No appellable error is discernible in the reasons for decision of the Federal Magistrate. 35 The dearth of material provided in support of the claim for refugee status is to be unfavourably compared to the comparatively greater attention to detail which emerged subsequently at that stage of the decision-making process when judicial review was being pursued. The present appeal, with respect, has all the hallmarks of a litigant more committed to unmeritoriously prolonging his stay in Australia than genuinely presenting for consideration at the outset the factual material upon which those entrusted with fact-finding responsibilities can sensibly base a decision. 36 The Notice of Appeal is to be dismissed. 37 There is no reason why the Appellant should not pay the costs of the First Respondent.

ORDERS 38 The Orders of the Court are: 1. The Notice of Appeal as filed on 23 November 2010 is dismissed. 2. The Appellant is to pay the costs of the First Respondent. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.