SZQDR v Minister for Immigration and Citizenship

Federal Court of Australia|2011-12-15|Before: Cowdroy J

REASONS FOR JUDGMENT 1 The appellant appeals from the decision of Federal Magistrate Nicholls delivered on 14 September 2011: SZQDR v Minister for Immigration and Citizenship [2011] FMCA 699 ('the FMC proceedings'). By such decision, his Honour dismissed an application by the appellant seeking review of the decision of the Refugee Review Tribunal ('the Tribunal') made on 17 March 2011, which affirmed the decision of a delegate of the first respondent to refuse to issue a Protection (Class XA) visa ('protection visa') to the appellant.

BACKGROUND 2 The appellant is a national of India who arrived in Australia on 28 July 2010 on a Business (Short Stay) Subclass 456 visa and applied for a protection visa on 7 September 2010. 3 In the appellant's application for a protection visa he claimed to be a member of the Indian National Congress Party ('the INCP'). The appellant claimed that he was working in the United Arab Emirates in 2003 and received an anonymous phone call. The caller threatened that he and John Bosco (his future brother-in-law) would be killed if the marriage between his sister and Mr Bosco went ahead. 4 The appellant claimed that he ignored such warning and the marriage went ahead on 9 January 2006. The appellant further claimed that 'a few days' after the wedding an 'armed mob of about fifteen' Communist Party of India ('the CPI') activists came to his house. However, neither the appellant nor Mr Bosco was at the house and the group of activists allegedly broke the windows and warned the women in the house that 'they would return to kill the [appellant] and [Mr] Bosco'. 5 Due to the appellant's claimed fear of the CPI, he arranged a visa and moved to Dubai on 15 September 2007. The appellant claimed that once the organisation had learnt that he had left India, the CPI became 'furious' and in one attack his mother was wounded and hospitalised. Due to his mother's injuries the appellant returned to India on 1 May 2008. One night shortly after returning, the appellant was allegedly attacked by a group of people and was admitted to a nursing home for treatment. 6 The appellant claims that his mother subsequently arranged a marriage for him, however, the 'activists blackmailed the girl's parents that their daughter would become [a] widow if she married [the appellant]'. 7 On 4 January 2010, after returning home again, the appellant claimed that he was attacked by four people on motorcycles, and that after the CPI activists knew he went to the police the CPI activists 'got infuriated and started torturing me with the help of Police'. 8 On 15 November 2010 the appellant was invited to attend an interview before the delegate. Neither the appellant nor his migration agent attended and no reason was given for his absence. As a result, the delegate proceeded to determine the appellant's application. The delegate found that, even if he gave the appellant the 'benefit of the doubt' with respect to his claims, the appellant could access effective state protection in India, and that internal relocation was a reasonable and viable option. 9 The delegate concluded that the appellant was not a person who was owed protection obligations for the purpose of s 36 of the Migration Act 1958 (Cth) ('the Act').

APPLICATION TO TRIBUNAL 10 On 17 December 2010 the appellant applied to the Tribunal for review of such decision. On 18 January 2011 the appellant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues in his case. Such hearing was fixed for hearing on 1 March 2011. 11 By letter dated 22 February 2011 the appellant's migration agent wrote to the Tribunal advising that its firm acted for the appellant. Such letter asserted that the letters sent by the delegate requesting the appellant to attend the interview before the delegate were never received, and asserted that the appellant had not been given a 'fair chance to discuss and substantiate his claims'. 12 The appellant produced a document entitled 'medical certificate'. The date and signature was illegible. Another medical certificate suggested the appellant had dislocated his shoulders in 2008. A third document dated 14 September 2010 claimed that the appellant had been an active member of the Congress Party for three years. 13 The appellant was questioned about the fact that he had left India for Dubai and returned two or three times after the alleged threats against him, and about his claimed medical issues. 14 The Tribunal affirmed the decision of the delegate on 17 March 2011, finding that it could not be satisfied of the credibility of the appellant's claims. The Tribunal found that it was: … not satisfied that the Applicant was ever harmed or threatened with harm by the CPI or anyone else in India because of a real or imputed political opinion. I am not satisfied there is a real chance he would suffer serious harm if he were to return to India.

PROCEEDINGS BEFORE THE FEDERAL MAGISTRATES COURT 15 On 13 April 2011, the appellant applied under s 476 of the Act for an order that the decision of the Tribunal be set aside and the matter be remitted to the Tribunal on the only ground that the 'Tribunal constructively failed to exercise jurisdiction'. 16 The hearing before Nicholls FM took place on 6 September 2011. The appellant was not legally represented but was assisted by an interpreter. The appellant did not make any submissions before the Court and said no more than 'that he could not go back to India'. 17 Nicholls FM framed the main complaint of the appellant to be that the Tribunal allegedly failed to properly consider a medical certificate which the appellant provided to support his claims. The Tribunal afforded no weight to the medical certificate. 18 Nicholls FM found that the Tribunal 'did not fail to properly engage with either of the two medical documents submitted by the [appellant]'. Nicholls FM said at [27] that despite the Tribunal not making specific findings regarding the medical certificate in its written reasons, this does not disclose a jurisdictional error. 19 The learned Federal Magistrate considered this not to be a case where the Tribunal failed to deal with an aspect of an appellant's claim. Rather the Tribunal found that the first medical document did not assist the appellant as it was illegible, and the second did not assist as prima facie it was inconsistent with the appellant's own evidence. 20 The appellant submitted to Nicholls FM that the Tribunal erred in giving 'no weight' to the medical certificate. However, Nicholls FM found that as the evidence of the appellant in fact was inconsistent with what was on the second medical certificate, it was 'open to the Tribunal to give lesser weight to what was on the face of the certificate'. His Honour relied upon the authority of Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 in support of such proposition. 21 His Honour concluded that there was no jurisdictional error in the Tribunal's decision and accordingly dismissed the application.

THE APPEAL 22 The appellant filed a notice of appeal in this Court on 4 October 2011. Contrary to the Court's directions, the appellant has filed no written submissions in support of his appeal. The notice of appeal is as follows: 1. The Hon. FM failed to take consideration that the second respondent committed jurisdictional error by failing to address the applicant's claims in the way [they] were made. Particulars: a. The applicant stated in his protection visa application that he was an active member of Indian National Congress party. b. The applicant received [an] anonymous phone call warning that he would be kill [sic] if the marriage [were to] go ahead. c. CPIM [sic] member attacked applicant's mother causing her to be hospitalized. d. The applicant was attacked by them causing him to be admitted to [a] nursing home. 23 The following orders are sought in this appeal, namely an order setting aside the judgment of Nicholls FM; an order that the matter be remitted back to the Tribunal to determine according to law and costs. 24 The appellant appeared for the hearing on 17 November 2011. Due to the Court's administrative error, there was doubt whether the appeal had been listed for final hearing on that day. Accordingly the proceedings were adjourned to 9 December 2011. On both days the appellant was self-represented but assisted by an interpreter.

Appellant's Submissions 25 The appellant filed no written submissions but made oral submissions. The appellant claimed that the Tribunal asked him the same question several times and that his answer on each occasion was correct. The appellant could not remember the particular question which he says was repeatedly asked of him. The appellant also said that he needed to obtain a medical certificate from India.

First Respondent's Submissions 26 The first respondent submits that Nicholls FM correctly addressed the ground of review in the appellant's application to the Federal Magistrates Court. The first respondent also submits that as the sole ground raised in the appellant's notice of appeal was not raised before Nicholls FM, the appellant requires the leave of this Court to raise it on appeal: see SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578. The first respondent submits that it is not in the interests of justice to grant leave and relies upon the authority of VUAX v Minister for Immigration and Indigenous Affairs [2004] FCAFC 158. 27 The first respondent further submits that the ground is without merit and the appellant did not provide a reason why the ground was not raised before the Federal Magistrate. 28 The first respondent submits that the Tribunal's findings with respect to the claims of the appellant were open to it on the evidence before it, and they were findings of fact that cannot be challenged before this Court on appeal: see Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Durairajasingham (2000) 58 ALD 609 per McHugh J at [67].

Findings 29 The Federal Magistrate stated the ground for consideration before him as being whether the Tribunal constructively failed to exercise its jurisdiction. His Honour considered the principal complaint of the appellant, namely that the Tribunal failed to properly consider a medical certificate provided to the Tribunal in support of the appellant's claims and that the Tribunal placed no weight on such document. His Honour found that there was no error in the conduct of the Tribunal. 30 His Honour observed that the document purporting to be a medical certificate was illegible with regards to its signature and date, as well as the diagnosis of the alleged condition. The second certificate suggested that the appellant was under treatment for dislocation of his shoulders. However the Tribunal raised with the appellant the fact that such certificate appeared to be provided in support of his allegation that he had been 'brutally attacked' by a 'group of people' in May 2008. 31 Although the Tribunal did not make specific reference to the medical certificate in its Findings and Reasons, his Honour found that there was no error revealed because the Tribunal's decision was intended to be read holistically. The Tribunal concluded that the medical certificate was of no assistance in supporting the appellant's claims. The Federal Magistrate found that this was not a situation in which the Tribunal had failed to deal with an aspect of the appellant's claim, as had occurred in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, or as discussed in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630. 32 The grounds of appeal contain four particulars as specified in [22] above. Each of the matters relied upon seek to challenge a finding of fact already made by the Tribunal. In these circumstances, the Court, for the reasons referred to in Durairajasingham cannot review findings of fact. 33 If the grounds of appeal are intended to be different to those raised before the learned Federal Magistrate, then the Court accepts the submissions of the first respondent that leave is required. The Court will only allow an appellant to raise a new ground at the appellant level where it considers it is 'expedient in the interests of justice to allow the new ground to be argued and determined': VACC v Minister for Immigration and Multicultural and Immigration Affairs (2003) 129 FCR 168 at [26]. See also NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [162]-[164]. Further, the Full Court in Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 said that 'in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised'. 34 The Court is satisfied that leave should not be granted in view of the generality of the claims now made and of the fact that none of them seem to do more than challenge the factual findings of the Tribunal. 35 The Court observes that it is plain that the Tribunal did engage in an active intellectual process with respect to the medical certificate by raising the medical issues referred to in the certificate with the appellant. Accordingly the decision-maker did give 'proper, genuine and realistic consideration' to the medical certificate: see NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 per Gummow J at [37]. 36 In summary, the Tribunal found as a fact that the appellant was not an active member of the Indian National Congress Party; that he did not receive a telephone call warning him that he would be killed if the marriage of his sister went ahead; that the appellant's mother's house was invaded resulting in her hospitalisation and that he was admitted to a nursing home as a result of an attack. The Court is unable to review such findings of fact: see Durairajasingham. 37 The Court finds that the appellant has failed to disclose any jurisdictional error in the decision of Nicholls FM and accordingly the appeal must be dismissed, with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Migration Act 1958(Cth)ss 36, 476

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