SZQET 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: SZQET v Minister for Immigration and Citizenship [2011] FMCA 707 ('the FMC proceedings'). By such decision, his Honour dismissed an application made on 29 April 2011 to the Federal Magistrates Court of Australia ('the FMC'). 2 Such application sought a writ of certiorari directed to the second respondent, the Refugee Review Tribunal ('the Tribunal'), to quash its decision of 4 April 2011 affirming a decision of a delegate of the first respondent ('the Minister') dated 21 December 2010 to refuse to grant the appellant a Protection (Class XA) visa ('protection visa'). The appellant also sought a declaration that notifications by the delegate and the Tribunal to refuse to grant the visa were invalid, and an order seeking to prohibit the removal of the appellant from Australia.

BACKGROUND 3 The appellant is a national of India who arrived in Australia on 14 September 2010 and subsequently applied for a protection visa on 11 October 2010. 4 The appellant supplied a document with his protection visa application outlining his written claims. In such document he claimed to be a Christian living in the capital of the state of Kerala, and to have been involved in preaching and missionary work to both Muslims and Hindus in his local area. As a result of such teachings, the appellant claimed that he received threats. 5 The appellant claimed that in October 2009 he was involved in a car accident with a motorcycle ('the motor vehicle accident'). As a result of such accident, Mr Ashraf, a Muslim and the leader of the National Development Front ('the NDF') was killed. The appellant claimed that since the accident he received threats and was 'seriously attacked' by members of the NDF on one occasion. The appellant further claimed that he moved to another city and continually moved houses to avoid further threats and harm from the NDF. 6 The appellant was interviewed by telephone by the delegate on 17 December 2010. On 21 December 2010 the delegate refused the appellant's application for the protection visa as he was not satisfied that the appellant met the relevant criteria. While the delegate accepted that the appellant had been involved in the motor vehicle accident as claimed, the delegate found that the appellant could access effective state protection in India and that he could relocate to avoid the harm as feared. 7 Accordingly the delegate concluded that Australia did not owe the appellant protection obligations for the purposes of s 36 of the Migration Act 1958 (Cth) ('the Act').

APPLICATION TO the TRIBUNAL 8 On 14 January 2011 the appellant applied for review of the delegate's decision to the Tribunal and attended a hearing before the Tribunal on 31 March 2011. The Tribunal accepted the appellant's evidence that he was a Christian and had been involved in the motor vehicle accident. However the Tribunal found that the appellant's version of the events was 'unconvincing' and preferred the police report. Such report asserted that the fault for the accident was negligence on behalf of the appellant and as a result the appellant was formally charged. The Tribunal further found that had the appellant returned to India he might be arrested upon arrival for contravening bail conditions. 9 The Tribunal found that the charges against him relating to the accident were not due to his religion or any other Convention ground. The Tribunal found that the appellant 'had been attacked after the incident' and that the appellant's 'religious activities may have played a significant role in [the NDF's] attitudes and actions against him'. Accordingly, the Tribunal found that the harm suffered by the appellant was serious for the purposes of s 91R(1) of the Act. However, the Tribunal found that it was reasonable for him to safely relocate to another location in India. 10 The Tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations. Accordingly the Tribunal affirmed the decision of the delegate not to grant a protection visa to the appellant.

THE FMC PROCEEDINGS 11 On 29 April 2011 the appellant applied to the FMC pursuant to s 476 of the Act. Such application was on the following grounds: 1. The decision made by RRT is Jurisdictional error [sic] 2. Breach of Natural Justice 3. Will be filed later 12 The Minister filed a response claiming, inter alia, that no arguable case for the relief claimed was made out, and that the application should be dismissed pursuant to Regulation 44.12 of the Federal Magistrates Court Rules 2001 ('the FMC Rules'). 13 The appellant was not represented before Nicholls FM but was assisted by an interpreter. The appellant made the following oral submissions (as summarised by Nicholls FM at [18]): 1) He did not have time to file further material in these proceedings. This material was said to be another medical certificate in relation to his injuries. 2) He asked if he could remove his shirt to show the Court his scars. 3) He claimed that he did not speak to any lawyer on the panel of the Court's "RRT Legal Advice Scheme". 4) He took issue with the Tribunal's preference for the police report of the motor vehicle incident over his own evidence. He submitted that there was only one witness to the accident, yet the police report made reference to "16 people". 5) He could not relocate within India because he could not live there, and it was safer in Australia.

Appellant's Submissions 14 The learned Federal Magistrate considered that the first two submissions were seeking impermissible merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259. Nicholls FM also considered that such findings by the Tribunal were reasonably open to it on the evidence before it. 15 With respect to the appellant's submission that he did not receive legal advice from the 'RRT Legal Advice Scheme', Nicholls FM found that there was evidence before the Court that the appellant had been provided with a reasonable opportunity to obtain such advice. His Honour observed that the Court's registry has assigned a lawyer to the appellant, and that such lawyer had sent a copy of the court book to him. Further, the appellant had been invited to attend a conference. Such invitation had been sent to his residential and postal address nominated to the Court. His Honour observed that subsequently the appellant acknowledged that he may have received the letters, but that he was expecting a telephone call. No adjournment of the hearing before the Federal Magistrate was sought. Regardless there is no entitlement to seek legal advice in the circumstances: see SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 per Gyles J at [4]. 16 Nicholls FM considered that the appellant's fourth submission was merely a challenge to the Tribunal's factual findings, and that it was a matter for the Tribunal to determine the weight to assign to evidence: see Minister for Aboriginal Affairs and another v Peko-Wallsend Limited and Others (1986) 162 CLR 24. 17 His Honour further found that there was no error in the Tribunal's application of the test for relocation. The Federal Magistrate found that this issue was 'squarely raised' with the appellant at the hearing before the Tribunal. His Honour referred to the accepted test for relocation, namely whether it was reasonable and practicable for an applicant to relocate to another part of the country of claimed persecution: see SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18 at [24]; SZFDV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 51. 18 His Honour found that the appellant's complaint before the Court 'that he could not safely live in India does not rise above a challenge to the Tribunal's factual findings. It again seeks impermissible merits review …'. Nicholls FM also concluded that there was no breach of procedural fairness under common law principles.

Appellant's Grounds of Review 19 With respect to the appellant's specific grounds of review (set out in [11] above) the learned Federal Magistrate found that the first ground was 'meaningless' without further particulars, as it was not for the FMC to make out the case on behalf of one of the parties. His Honour observed that the applicant was given the opportunity to be furnished with legal advice. 20 With respect to ground 2, namely the claim that there was a breach of natural justice in the hearing before the Tribunal, the appellant did not particularise such claim. Nicholls FM agreed with the first respondent's submission that the provisions of s 422B of the Act applied and that the Tribunal had complied with its procedural fairness obligations pursuant to s 425 of the Act. Further, the appellant had not filed any evidence to support a challenge to the account of the Tribunal's events before it. 21 As to ground 3, Nicholls FM found that the appellant had a reasonable opportunity to file material, and that the FMC, at its first directions date, placed the appellant on notice of deficiencies in his proposed appeal. 22 Accordingly, his Honour dismissed the application.

APPEAL TO THE FEDERAL COURT OF AUSTRALIA 23 The appellant filed a notice of appeal on 4 October 2011. The appellant seeks, inter alia, the judgment of Nicholls FM be set aside and the proceedings be remitted to the Tribunal to be determined according to law. 24 No written submissions were filed in support of his appeal. The notice of appeal sets out the following grounds of appeal: 1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims [sic] and ignoring the aspect of persecution and harm in terms of sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. 2. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT. 25 The hearing of the appeal was fixed for 17 November 2011. However, at the beginning of the hearing the Court was made aware that the appellant was erroneously notified of the date of the scheduled hearing. While the administrative error was corrected three days after, the Court was not satisfied that the appellant had adequate time to prepare, and adjourned the hearing until 8 December 2011. 26 The appellant attended on both occasions, unrepresented but assisted by an interpreter. The appellant provided no written submissions but made oral submissions. The appellant submitted that he told the Federal Magistrate that the Tribunal did not consider his case properly and that he did not know what he was able to submit to the Tribunal when he came to Australia. He stated that he could not obtain documents from India because he was the only son of his mother and his mother was ill. He stated that he explained to the Federal Magistrate that he could not obtain such documents and wished to do so in order to properly make his case. He said that he could not afford legal representation as he was only employed part-time. 27 The Court inquired of the appellant the reason for his submission that the Tribunal did not consider his case properly. The appellant responded that the Tribunal found that he could relocate in India but since Muslims existed throughout India they would find and kill him even if he moved within India. 28 When asked what particular document he wished to obtain from India, he said it was hospital records which would confirm his admission to hospital after the motor vehicle accident. He stated that his mother could not attend hospital to obtain the records as both his mother and his wife were very sick. 29 In answer to the oral submissions of the appellant, the first respondent submitted that the appellant did not suggest to the Tribunal that he sought to produce the hospital records. Further, the first respondent points out that the Tribunal accepted that the appellant was involved in a motor vehicle accident but found that the appellant could relocate in a different part of India to avoid any harm.

First Respondent's submissions 30 In response to the first ground raised by the appellant's notice of appeal, the first respondent submits that it was not raised before Nicholls FM. Accordingly, leave of this Court is required for the appellant to raise it on appeal. The first respondent opposed leave being granted, submitting that it is not 'expedient in the interests of justice to allow this ground to be argued and determined for the first time on appeal as it has no reasonable prospect of success'. The first respondent relies upon the decision of the Full Court of VUAX v Minister for Immigration and Citizenship [2004] FCAFC 158 at [46]-[48] in support of such proposition. 31 Further, the first respondent submits that the appellant does not identify how the Tribunal acted in a 'manifestly unreasonable way' or 'ignored the aspect of persecution and harm'. 32 With respect to the second ground of appeal, the first respondent submits that it is clear that Nicholls FM did clearly consider the matters raised before his Honour and that it was open to the Federal Magistrate to find that the appellant's grounds of review were not sustained. The first respondent further asserts that without adequate particularisation demonstrating what 'errors' the Federal Magistrate failed to consider, the ground of review 'cannot succeed'. Further, the first respondent claims that even if the Tribunal did make an error of fact, such error would not constitute jurisdictional error: see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137].

Findings 33 With regard to the oral submissions of the appellant, the Tribunal record does not disclose that he sought any additional time to produce a hospital record. In any event, the Tribunal accepted that the appellant had been involved in the motor vehicle accident. The Tribunal did not refer to any hospitalisation of the appellant in its findings but it recorded the claims of the appellant that he had remained in a hospital for one week and returned to his home on the eighth day. The Tribunal found that it was both reasonable and practicable for the appellant to safely relocate to a different part of India and that there was no real chance that he would face harm. 34 Before the Federal Magistrates Court, the appellant submitted that he did not have time to file 'further material' in those proceedings and claimed that the material was 'another medical certificate in relation to his injuries'. The appellant did not refer to his need to provide hospital records. Even if the Court accepted that the appellant did not know what he was entitled to submit to the Tribunal when he appeared before it, it is irrelevant, since the Tribunal was prepared to accept the appellant's claim that a motor vehicle accent had occurred in which he was involved. Any hospitalisation which followed has no bearing upon the finding of the Tribunal that the appellant could safely relocate to another location. This is a finding of fact in respect of which the Court cannot review: see Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Durairajasingham (2000) 58 ALD 609 per McHugh J at [67]. 35 Insofar as the appellant claims that the Tribunal's decision was 'unreasonable', such submission cannot be sustained. A decision can only be categorised as 'unreasonable' where no logical basis exists for the decision: see Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1. 36 The Tribunal's reasons demonstrate that it accepted that there was a possibility that the appellant might suffer some harm, but found that it could be avoided by his relocation. There was no error in the Tribunal reaching such conclusion: see SZATV at [23]-[34] per Gummow, Hayne and Crennan JJ. 37 The first ground of appeal contained in the appellant's notice of appeal was not a ground which was raised before the Federal Magistrate. The Court will grant leave for a new ground to be raised only if it is 'expedient in the interests of justice to allow the ground to be argued and determined for the first time': see VUAX at [46]. 38 No particularisation has been given and no submissions made to suggest that the Tribunal acted in a manifestly unreasonable way as claimed by the appellant. The appellant appeared before the Tribunal on 31 March 2011 to give evidence and present his arguments. There is no procedural defect apparent in the Tribunal's invitation to the appellant to attend the hearing nor in the conduct of the hearing itself which could be said to constitute an error of law. The Court cannot discern any basis upon which it could be said that the Tribunal conducted itself in such an unreasonable manner as to constitute 'unreasonable conduct' in the Wednesbury sense: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Accordingly the Court finds that leave to raise the first ground of appeal should not be permitted since it has no reasonable prospects of success. 39 As to the second ground of appeal it is apparent from a reading of the decision of the Federal Magistrates Court that his Honour considered each of the matters raised by the appellant. No 'legal and factual errors' alleged to exist in the decision of the Tribunal which the Federal Magistrate failed to consider have been identified by the appellant. It follows that this ground of appeal cannot succeed.

CONCLUSIONS 40 The Court is unable to find any basis upon which the determination of the Federal Magistrate could be said to be erroneous, nor is there any jurisdictional error in the findings of the Federal Magistrate. 41 It follows that the appeal must be dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Migration Act 1958(Cth)ss 36, 91R, 422B, 425

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