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[2012] FCA 135
Federal Court of Australia
2012-02-24
Finkelstein JJ, Bromberg J
Original judgment source is linked above.
INTRODUCTION 1 This is an appeal from a judgment of a Federal Magistrate (SZQGR v Minister for Immigration and Citizenship [2011] FMCA 839) in which the Federal Magistrate dismissed the appellants' application for judicial review. The Federal Magistrate reviewed a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the first respondent ("the Minister") not to grant the first appellant a Protection (Class XA) visa ("Protection visa"). 2 The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by the appellants was to determine whether the Tribunal's decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) ("the Migration Act"); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 3 The task of this Court in relation to the appeal brought by the appellants is to determine whether the judgment of the Federal Magistrate is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ). 4 For the reasons that follow, I have determined to dismiss the appeal.
BACKGROUND 5 The appellants are a husband and wife couple who are citizens of India and who arrived in Australia on 28 July 2010 on subclass 676 Tourist visas. On 3 September 2010 the first appellant ("the Appellant") lodged an application for a Protection visa with the Department of Immigration and Citizenship on the grounds that he feared persecution in India because of his political opinion. The second appellant made an application as a dependent member of the first appellant's family unit. The Appellant claimed that: he was a Congress party supporter and later claimed he was also a Congress party member; in September 2008 he started his own novelty business and after six months in business he became involved with a local business committee; after becoming involved in the committee he became concerned that the business community was suffering because of the amount of political donations that were demanded from local businesses for the Bharatiya Janata Party ("the BJP"), the party in power at the time; he subsequently became politically active and began speaking out about this alleged corruption and eventually told business owners not to pay the donations and, as a result, he suffered attacks from BJP members at his workplace and house; BJP members also ransacked his business; and his fellow party members and the local business community then advised him to leave the country which he did. 6 On 26 November 2010 a delegate of the first respondent ("the Delegate") refused the Appellant's application for a Protection visa because the Appellant's evidence was vague and uncorroborated and his claims lacked credibility. 7 On 19 January 2011 the appellants filed an application in the Tribunal for review of the delegate's decision. On 29 March 2011 the Appellant attended a hearing before the Tribunal via teleconference and was assisted by an interpreter. The Appellant made additional claims at the Tribunal hearing which are helpfully set out at [7] of the Federal Magistrate's decision. 8 The Tribunal found that the Appellant was not being truthful in his claims, and that there were numerous and serious inconsistencies in his evidence (helpfully summarised at [8b] of the Federal Magistrate's decision). The Tribunal did not accept that the Appellant was a supporter or member of the Congress Party as he lacked basic knowledge about the party. Due to the Tribunal's adverse findings of credibility made against the Appellant, the Tribunal did not consider that the Appellant faces a real chance of serious harm if he returns to India, either now or in the reasonably foreseeable future in relation to any political opinion, either actual or imputed. This includes his actual or imputed views of; political donations to the BJP; his, his father's and his family's membership of the Congress Party; and, of the BJP generally in India. On 3 May 2011 the Tribunal affirmed the delegate's decision not to grant a Protection visa.
THE FEDERAL MAGISTRATE'S DECISION 9 On 30 May 2011 the Appellant lodged an application for review in the Federal Magistrates Court relying upon the following grounds: 1. The Tribunal did not give to the applicant before the hearing the independent information that it had about politics in Gujarat, India. The Tribunal used this information (RRT decision record pages 15 to 17). This was against section 424A of the Migration Act 1958. 2. The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusions that the applicant claims were not plausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters. 10 At [5]-[7] the Federal Magistrate outlined the original claims of the Appellant and the additional claims made at the Tribunal hearing. At [8] his Honour set out a summary of the Tribunal's reasons and decisions. 11 In relation to the first ground, the Federal Magistrate held at [12] that, pursuant to s 424A(3), the Tribunal was not required to put independent country information to the Appellant in the event that such information might be the reason, or a part of the reason, for the Tribunal deciding to affirm the delegate's decision. While s 424A provides that the Tribunal must put certain information to an applicant which might be the reason, or part of the reason, for the Tribunal deciding to affirm the delegate's decision, independent country information clearly falls within the s 424A(3) exception. The first ground was therefore dismissed on the basis that no jurisdictional error on the part of the Tribunal had been identified. 12 At [14] the Federal Magistrate held that the second ground essentially alleged a breach by the Tribunal of its obligation under s 425(1): to put the appellants on notice of issues arising in relation to the decision under review. At [17] the Federal Magistrate was satisfied that the Appellant was sufficiently put on notice during the hearing of the determinative issues of the review and that this was clear from the Tribunal's decision record. Further, the Federal Magistrate noted that the Tribunal's decision record shows that: [N]ot only did the Tribunal canvass at the hearing particular problems it had with aspects of the first applicant's evidence, its summary of the hearing reveals that it expressly referred more than once to the evidence featuring inconsistencies and that it said that it was concerned by the first appellant's evidence, that it did not understand why he acted in the way he did and that aspects of his evidence at its hearing were different from what he had said in his statement filed with his protection visa application form. From this, it must have been apparent to the first applicant that the core elements of his account, and perhaps the entirety of his account, were regarded with some scepticism by the Tribunal. 13 On the basis that the Tribunal had clearly canvassed the determinative issues and highlighted inconsistencies in the Appellant's evidence with the Appellant during the hearing, the Federal Magistrate dismissed the second ground on the basis that no jurisdictional error on the part of the Tribunal was made out. On 31 October 2011 the Federal Magistrate dismissed the application for review on the basis that no jurisdictional error on the part of the Tribunal had been demonstrated.
GROUNDS OF APPEAL IN THIS COURT 14 On 17 November 2011 the Appellant filed a Notice of Appeal in this Court which contained the following stated grounds of appeal: 1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants claim 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. 15 Despite orders made on 21 November 2011 allowing the appellants to file and serve written submissions 10 clear working days before the hearing date (by 10 February 2012), none were filed or served. At the hearing on 24 February 2012 the Appellant appeared and was self-represented and assisted by an interpreter. He declined the invitation made to him to make a submission to the Court.
Ground One 16 The first ground is unparticularised. It appears that it is a new ground and therefore requires leave to be raised by the Appellant. The relevant principles regarding the raising of new grounds of appeal were the subject of detailed consideration in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[11] (Flick J). Leave should only be granted to raise new grounds on appeal where it is expedient in the interests of justice. For a ground to be argued and determined for the first time on appeal, it must at least be shown that the ground has a reasonable prospect of success. 17 Ground one sets out an allegation that the Tribunal's decision was manifestly unreasonable because, in terms of what s 91R of the Migration Act requires, the Tribunal ignored the Appellant's claims of fearing persecution and harm. Section 91R deals with the degree of harm and the nature of the persecution required for the Convention to have a protective application. The Convention to which I refer is the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"). 18 In determining whether the Appellant had suffered persecution in India or had fled India for a Convention reason, the Tribunal considered all of the Appellant's claims which were founded upon his alleged support of, and involvement in, the Congress Party. Having considered all of the Appellant's claims, the Tribunal did not accept that the Appellant had been the subject of persecution for a Convention reason because the Tribunal did not accept that the Appellant's claims of persecution were credible. Based upon the oral evidence given by the Appellant, the Tribunal noted serious inconsistencies both internally in information he conveyed at the hearing and also between what he said at the hearing and what was written in his protection visa application statement. The Federal Magistrate helpfully summarised those inconsistencies at [8b]. It was unnecessary for the Tribunal to focus upon the degree of harm or the definition of persecution in s 91R: SZNZH v Minister for Immigration and Citizenship [2010] FCA 1286 at [47] (Dodds-Streeton J). The appellant's reliance on s 91R is misconceived. 19 I am satisfied that the first ground has neither merit nor any reasonable prospect of success. It is not expedient in the interests of justice that leave to raise it should be granted.
Ground Two 20 The second ground is a broad and unparticularised claim that fails to identify any specific error on the part of the Federal Magistrate. Doing the best I can I am unable to identify any error on the part of the Federal Magistrate in failing to identify jurisdictional error by the Tribunal. For completeness I will reconsider the grounds agitated in the court below. 21 In terms of the ground that the Tribunal breached s 424A of the migration Act, I agree with the Federal Magistrates reasons at [12]. Section 424A obliges the Tribunal to put to an applicant certain information upon which it might base the determination of its decision. It is a provision going to procedural fairness. Section 424A(3) provides an exception to that obligation, and independent country information falls within the exception: SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [2] (Moore J) and [49] (Tracey and Foster JJ). No error is apparent in the reasoning of the Federal Magistrate. 22 In relation to the second ground before the Federal Magistrate, it seems to me that the Federal Magistrate correctly identified that the essence of what the Appellant was alleging was a breach of s 425(1) of the Migration Act. As evidenced by its decision record, the Tribunal put to the Appellant, the determinative issues in the matter especially regarding inconsistencies in his evidence. Furthermore, I agree with the Federal Magistrate's observations at [17] that the Tribunal referred to certain issues it was having trouble with on more than one occasion which should reasonably have put the Appellant on notice of the issues arising in the decision under review and thereby fulfilling its s 425(1) obligations. I can find no error in the reasoning of the Federal Magistrate and this ground must be dismissed. 23 As no error on the part of the Federal Magistrate in relation to ground two has been demonstrated, the second ground must also be dismissed.
DISPOSITION 24 For the reasons I have provided, the appeal must be dismissed. The Appellants should pay the first respondent's costs of the appeal. I will make orders to that effect. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg
SZQGR
Minister for Immigration and Citizenship