SZOWC v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This appeal concerns the appellant's attempts to secure the issue to him of a protection visa. A protection visa may be issued by the Minister for Immigration and Citizenship if the Minister is satisfied that the applicant for the visa is being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. In practice, applications for such visas are not dealt with by the Minister personally, but instead by delegates authorised by him for that purpose. 2 The issue of such visas is not a task which has been conferred upon the judicial branch of government. Instead, the function is conferred upon the Minister and his delegates by s 36 of the Migration Act 1958 (Cth) (the "Act") and the Act also provides an unfettered right for a fresh hearing before another part of the government, the Refugee Review Tribunal (the "Tribunal"). The Federal Judiciary becomes involved in cases of this kind only by reason of its function of reviewing the Federal Executive's administrative actions and fulfilling the function of circumscribing the actions of the executive within the law. 3 In cases involving applications for, and the issue of, protection visas this Court and the Federal Magistrates Court beneath it have no role, no function, in the assessment of the merits or otherwise of applications for protection visas. Those observations form the necessary backdrop to the issues which arise in the present appeal. The appellant applied for a protection visa from the Minister by means of an application which was filed on 12 May 2010. In due course, that application was processed by a delegate of the Minister and the delegate refused that application on 29 July 2010, delivering, at the same time, a set of reasons for doing so. 4 Subsequently, the appellant applied for a review of that decision with the Tribunal on 24 August 2010. The Tribunal issued to the appellant an invitation to attend for a hearing before it and he did so. Having considered the appellant's application and having heard from him during the review hearing, the Tribunal arrived at the same conclusion which the delegate had arrived at, namely, that the application for a visa should be refused. This it did on 23 November 2010. 5 On 17 December 2010, the appellant applied for the issue of writs of certiorari, prohibition and mandamus from the Federal Magistrates Court on three identified grounds. That application came before the Federal Magistrates Court for hearing on 22 March 2011, at which time that Court dismissed the application for the writs with costs which it assessed in the amount of $3,600. It is from those orders that the appellant now appeals. The appeal is constituted by a notice of appeal filed on 4 April 2011. 6 There is no dispute that the appellant is a national of India, 40 years of age and, when not in this country, ordinarily resident in the Indian state of Punjab. Nor is it in dispute that he most recently arrived in Australia in February 2010. He had been present in Australia in 2007 but had returned to India in 2008 and remained there during the intervening period. The basis upon which the appellant put his initial claim to the delegate was as follows: he claimed to be a Sikh and to have been a member of the Khalistan movement, an organisation which, it appears to be accepted, was devoted to the end of establishing a separate Sikh state. 7 The delegate accepted (as did the Tribunal) that there had been such a movement and that, at least prior to 1995, members of that movement had been subjected to violence at the hands of Indian security forces. The appellant claimed that, following the assassination of the Chief Minister of Punjab, a Mr Beant Singh, he had been arrested by security forces and held for a period of 15 days, during which he was tortured. He claimed to have been involved in a number of aspects of Sikh politics which involved the furthering of Sikh causes. He claimed that those activities were ones which brought him into conflict with the authorities. 8 All of these claims were contained within a written statement which the appellant attached to his application for a visa. The delegate was troubled by two aspects of that application. First, he was concerned that the information available to him from departmental records indicated that, whatever the difficulties had been in relation to the Sikh separatist movement in the 1980s and early 1990s, those issues had passed and, by and large, relations between the Sikh and the Hindu components of Punjab society had become better adjusted. Secondly, he was troubled by aspects of the chronology which the appellant put forward in his visa application. In particular, he was concerned that the appellant had originally arrived in Australia in late 2007 but had returned in 2008 to India before re-entering Australia in 2010. 9 The delegate was perplexed as to why the appellant would not have applied for a protection visa when he first arrived in Australia and perplexed again as to why it would be that a person concerned about persecution would return to the country in which that persecution was alleged to be taking place. Accordingly, he invited the appellant to an interview, but at which the appellant did not attend. In those circumstances, the delegate acted upon his doubts and rejected the appellant's claims, concluding that he did not have a well founded fear of persecution on the basis of being a Sikh; the critical elements in his account being rejected. 10 From that determination, the appellant then applied for a review before the Tribunal. As the delegate had before it, the Tribunal issued an invitation to the appellant to attend a review hearing. At that review hearing, which this time the appellant did attend, he advanced a different version of events to those which he had advanced before the delegate. He adhered to the account he had given to the delegate to the extent that it involved his participation in Sikh separatist politics, but he downplayed - in a way his account before the delegate had not - his involvement in the Khalistan movement. Nevertheless, it should be accepted that the account which was advanced did involve the appellant in what might be loosely described as Sikh politics in the early 1990s. 11 In addition, however, he advanced to the Tribunal, for the first time, a fresh argument that there was an additional matter giving rise to a concern of persecution. The first persecution claim was based upon the appellant's membership of the social group of Sikhs; his religion; and his political opinion. This second claim was now based upon his membership of the Congress Party. Upon his return from Australia to India in 2008, the appellant had participated in the 2009 Indian national elections. In those elections, the Congress Party was, so I was told, successful. But in Punjab, the Congress Party was not successful and it had been defeated, as I understand it, by the Akali Dal Party. 12 The appellant submitted to the Tribunal that as a result of his participation in that election on behalf of the Congress Party he now feared persecution for his membership of that party. The Tribunal was unpersuaded by both the modified first claim or this new matter. As to his involvement in Sikh politics, it embraced and it extended the concerns which the delegate had expressed. It did not accept that it was likely that the appellant would have returned to India if he was concerned about being a Sikh. It did not accept that the difficulties which had been identified in relation to Sikhs retained any currency. It took into account two further matters: it was concerned that the appellant had not attended the hearing before the delegate; and it was concerned about the nature of the statement which had been placed before the delegate. 13 It concluded, as the delegate had, that it did not accept that the appellant had involved himself in Sikh separatist politics to the extent claimed in the statement. Insofar as the claim in relation to the Congress Party was concerned, the Tribunal, understandably enough, was struck by the absence of any reference to that claim in the appellant's initial claims to the delegate. Also, it was troubled by the idea that on the basis of his limited involvement in the national elections, the appellant would have been the subject of persecution. Taking the matter altogether, it did not find either of these claims by the appellant to be credible and, disbelieving him, did not find that he satisfied the requirements of the Act for the grant of a protection visa. It refused the application. 14 The proceedings in the Federal Magistrates Court necessarily were required to identify jurisdictional errors in the decision of the Tribunal. The application for the writs set out three grounds of review. The first was that the Tribunal had failed to communicate to the appellant during the hearing the reasons why it was minded to dismiss his application. It had therefore fallen foul of the requirements of s 424A of the Act. That provision imposes upon the Tribunal a requirement, amongst other things, to give to an applicant 'clear particulars' of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review. 15 The second ground which was pursued by the appellant also related to s 424A. It contended that the Tribunal had breached the provision by failing to give to the appellant the country information upon which the Tribunal had acted when it had informed itself about the operation of the All-India Students Federation, the Khalistan movement and the 2009 Lok Sabha election in Punjab. 16 The third ground was that the Tribunal had denied the appellant procedural fairness by reaching adverse conclusions about certain aspects of his claims which were not obviously open on the known material and without giving him an opportunity to be heard on those matters. 17 The Federal Magistrate dealt with those three grounds in his reasons in terms which, with respect, are entirely orthodox and unexceptional. As to the first argument based upon s 424A, his Honour noted the affect of the High Court's decision in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609. The Federal Magistrate concluded that the Tribunal's adverse views of the appellant's evidence were not 'information' for the purposes of s 424A and its requirements did not therefore require it to be provided to the appellant, citing VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471. 18 As to the suggestion that the Tribunal was required to provide the appellant with the country information upon which it had relied, the Federal Magistrate was of the view that that argument was defeated by s 424A(3)(a) which exempts from the obligation cast upon the Tribunal by s 424A any information which is 'not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member'. 19 As to the procedural fairness argument, the Federal Magistrate concluded that the rules of procedural fairness were relevantly those which were set out in the Act, by reason of s 422B. He concluded, in light of that, that this ground was really no more than the first two grounds in a different guise. 20 Before the Federal Magistrate, the appellant also pursued a number of oral arguments. First, he made a number of complaints as to the manner in which the Tribunal had gone about its task which the Federal Magistrate was content to treat as a bias application. He concluded that none of the material before him made good such an allegation. In particular, he concluded that it was not sufficient that the appellant disagreed or was dissatisfied with the Tribunal's assessment of the facts and of his evidence, but rather what was required was the somewhat higher threshold of establishing that the manner in which the Tribunal had gone about the determination was such that a well informed, reasonable observer would regard it possible that the Tribunal might not bring an open mind to bear. Approaching the question that way, the Federal Magistrate concluded that no risk of apprehended bias was made out. 21 The second oral complaint which was made by the appellant to the Federal Magistrate was that the Tribunal expected him to provide proof or evidence in support of his claim. The Federal Magistrate canvassed the situations in which such a proposition may, on occasion, result in jurisdictional error, citing Machmud v Minister for Immigration and Multicultural Affairs [2001] FCA 1041 at [16], but concluded, in terms which are not exceptional, that such a case was not made out. 22 The third matter pursued orally at the hearing was that the appellant had had a conversation with his wife and she had told him that he would be persecuted if he returned to India. The Federal Magistrate was, however, unable to discern from that matter any tenable ground of review. In those circumstances, he concluded that the application for prerogative writs should be dismissed with costs. 23 The notice of appeal filed in this Court pursues only one ground of appeal and that is that the Federal Magistrate 'failed to take consideration that the [Tribunal] committed jurisdictional error by failing to address the [appellant's] claims in the way [they] were made'. Three particulars are provided for that ground of appeal. First, that the appellant stated in his protection visa application that he was an active member of the Sikh Student Federation ("SSF"). Secondly, that he had claimed he had been working for the Khalistan movement. Thirdly, 'the Tribunal did not consider the way that he claimed to [be] involved in SFF and [the] Khalistan movement that he came to the adverse attention of Indian authorities' [sic]. 24 Mr Baird, who appeared for the Minister, submitted that that ground had not been a matter which was pursued before the Federal Magistrate. He contended that accordingly it was not possible for the appellant to pursue such a ground without the leave of this Court: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51. 25 In this Court, the appellant, who appeared for himself with the assistance of an interpreter, applied for a grant of such leave. Whether a grant of leave should be given to pursue a ground of appeal not raised in the court below is a discretionary decision. That discretion is informed by a number of matters. These include: the merits of the proposed ground of appeal; the prejudice which may attend the allowing of it to be raised late; the explanation given for the late raising of the point; and any other matter which bears upon the interests of justice, procedural or substantive. 26 In this appeal, the question of whether that grant of leave should occur is to be assessed by reference to what the proposed merits of the ground of appeal might be. The proposed ground seems only to suggest that the Federal Magistrate had failed to turn his mind to whether the Tribunal had committed jurisdictional error and had failed to consider whether the Tribunal had addressed the claims in the way in which they were made by the appellant. It is difficult to see that this ground of appeal has any prospects of succeeding. 27 To begin with, it is quite obvious that the Federal Magistrate was alive to the need to identify jurisdictional error. For example, in paragraph 50 of the Court's reasons, his Honour said that the 'Court would need to discern at the very least jurisdictional error on the part of the Tribunal'. As to the suggestion that the Federal Magistrate had failed to observe that the Tribunal had not looked at the way the claims had been pursued by the appellant before it, that contention cannot be squared with paragraphs 7 through to 15 of the Court's reasons which show that it considered the claims which had been made to the Tribunal and the Tribunal's findings in some detail. Accordingly, the proposed ground of appeal does not enjoy any real prospects of success. It is appropriate to refuse the application for leave to allow the ground to be raised. 28 That leaves the notice of appeal with no extant grounds in it which would, in the ordinary course, require the dismissal of the appellant's appeal. For the sake of completeness, however, it is appropriate to record that I do not detect in the Federal Magistrate's treatment of the three oral matters which were pursued before him any error. His Honour's treatment of the grounds based upon s 424A of the Act is entirely correct. The Tribunal was not obliged to reveal to the appellant its internal thought processes or its reasons for arriving at adverse views about his evidence. The provision did not operate that way, nor did s 424A operate to require the Tribunal to disclose to the appellant the country information for, as the Federal Magistrate correctly observed, s 424A(3)(a) excluded that possibility. 29 I agree, too, that the procedural fairness ground which was advanced by the appellant before the Federal Magistrate did not give rise to anything which was not covered in the first two grounds. I detect, therefore, in his treatment of that ground, no further error. Insofar as the three matters which were pursued orally before him are concerned, it suffices to say that on no view was a case that there was apprehended bias on behalf of the Tribunal been made good. The Federal Magistrate's analysis of that question is correct. Likewise, I accept that the facts of this case did not generate any expectation from the Tribunal of proof or evidence from the appellant. 30 The final matter pursued before the Federal Magistrate, that is, the appellant having been informed by his wife that he would be persecuted if he returned to India, does not, for the reasons given by the Federal Magistrate, disclose any reviewable error. It follows that, leaving aside the formal matter that the notice of appeal does not actually raise any ground compensable before this Court, and having reviewed all of the events which took place in the Federal Magistrates Court, it does not appear to me that there is any viable ground available to the appellant. In those circumstances the appropriate course is that the appeal to this Court be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.