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[2013] FCA 99
Federal Court of Australia
2013-02-12
Bennett J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The appellant is a citizen of India who arrived in Australia on 2 August 2009 on a Subclass 573 student visa. He applied for a protection (Class XA) visa on 9 June 2011. The appellant's claim, of fear of persecution was based on his political opinions. He claimed that he was an active member of the All India Sikh Student Federation (AISSF) and a supporter of the Khalistan Movement, which seeks a separate Sikh nation. He appeals from the decision in the Federal Magistrates Court dismissing his application for review of the decision of the Refugee Review Tribunal (the Tribunal), which upheld the refusal of a protection visa by a delegate of the Minister for Immigration and Citizenship (the Minister). 2 In order to understand the decision of the Federal Magistrate it is necessary to consider the basis of the Tribunal's decision. The Tribunal decision was summarised at [12]-[20] of the Federal Magistrate's decision: SZRIE v Minister for Immigration and Citizenship [2012] FMCA 940. The Tribunal made it clear that, for the reasons it elucidated, it did not believe that the appellant was telling the truth. It reiterated this conclusion with respect to the appellant's reasons for having left India, the reasons for his claimed fear of returning to India and his history of interrogation and mistreatment by the police. It did not accept that members of opposition parties in Punjab, including supporters of the creation of a separate Sikh nation of Khalistan, faced repression at the hands of the authorities. 3 It did not accept that the appellant had been threatened by members of other political parties. It did not accept that there was a real chance that if the appellant returned to India he would be threatened, injured, killed or otherwise persecuted by reason of his actual or imputed political opinion. The Tribunal's reasoning cited the appellant's evidence and was based upon the credibility of that evidence. 4 In his application before the Federal Magistrate, the appellant relied upon four grounds: [1] The Tribunal failed to consider an integer of Applicant claim, in failing to consider whether or not a Sikh in India was at risk of harm from radical Hindus, and not able to access effective protection whilst the Tribunal formed the view that the applicant was a credible witness. 2. The Tribunal had no jurisdiction to make the said decision because its 'reasonable satisfaction' was not arrived in accordance with the provisions of the Migration Act. 3. The member of the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that: (a) it failed to properly apply the consideration that applicant's for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant's claims are plausible, which was the case here. 4. The Tribunal has failed to investigate applicant claims, specially the grounds of persecution in India. Therefore, the Tribunal's decision dated 7 March 2012 was effected by actual bias constituting judicial error. Therefore the applicant submit that the Tribunal failed to analyse properly the 'future harm' the applicant may face if he has to go back to India. Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the 'real chance' test, before dismissing the applicant clam. [Errors in the original.] 5 The Federal Magistrate dismissed the application after a consideration of each ground (at [28]-[59]). It is not necessary to discuss each aspect of the Federal Magistrate's decision, as the grounds of appeal differ in part from those before the Federal Magistrate. The grounds of appeal from the decision of the Federal Magistrate are that: 1. The FM failed to consider that the Tribunal had denied the applicant procedural fairness reaching adverse conclusions that applicant claims were implausible, being conclusions that were not obviously open on the known material. 2. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT. The Tribunal has failed to investigate Applicant claims, specially [sic] the grounds of persecution in India.
Ground 1 6 The Minister submits that leave must be granted to add this ground as it was not a ground of the application before the Federal Magistrate. He further submits that leave ought to be refused because the proposed ground has no merit. 7 No particulars of the first ground of appeal were provided in the notice of appeal. The appellant was unable to provide further particulars in support of the first ground of appeal, other than to submit that the Tribunal did not investigate the claims he put before it and to assert that he does fear persecution if he returns to his homeland. To the extent that Ground 1 seeks merits review, such review is not permissible at this stage of appeal. 8 Further, Ground 1 does not identify which findings are alleged to have been 'not obviously open on the known material'. Each of the Tribunal's findings was supported by reasons that the Tribunal gave. The requirements of procedural fairness do not require the decision maker to 'disclose what he is minded to decide so that the parties may have a further opportunity of criticising the mental processes' before a final decision is reached, nor do they 'require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given' (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 166 [48] quoting F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369). In the absence of any particulars, other than an assertion as to the conclusion reached by the Tribunal, the appellant has not identified any legal error in the judgment of the Federal Magistrate or jurisdictional error in the reasons of the Tribunal. 9 In my view Ground 1 has no prospect of success and leave to rely upon it should be refused.
Ground 2 10 To the extent that this ground asserts that either the Tribunal or Federal Magistrate made incorrect factual conclusions, the Tribunal was entitled to make the factual findings open to it on the evidence before it and the Federal Magistrate upheld that conclusion. 11 Again, no particulars have been given by the appellant in support of this ground of appeal, other than his assertion that he had submitted his claim to the Tribunal, was looking for justice and that his life was in danger if he returned to India. He also says that he had a fear of persecution from the police and from the government, and that the Tribunal had failed to investigate those matters. A reading of the Tribunal's reasons make it clear that the Tribunal did deal with those aspects of the appellant's claims. 12 To some extent, this ground repeats ground 4 before the Federal Magistrate. His Honour dealt with ground 4 in some detail at [52] to [56] of his Honour's reasons. His Honour set out aspects of the law that were relevant, including: the fact that the Tribunal only needed to consider the claims advanced by the appellant or 'clearly aris[ing]' on the material before it (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at 19 [60])); that the Tribunal was not required to refer to every piece of evidence proffered by the appellant, nor was it required to make findings on each piece of evidence (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [68]-[69] and 348 [75]); that this was not a case of a failure on the part of the Tribunal 'to make an obvious inquiry about a critical fact, the existence of which is easily ascertained' (Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at 436); and that the Tribunal was under no general obligation to make inquiries (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 999 and WAGJ v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24]). 13 Section 427 of the Migration Act 1958 (Cth) does not 'import an element of duty' on the Tribunal, and therefore, no duty to inquire arises from this section (SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [46]). The appellant has not particularised an example of the sort of inquiry envisaged in SZIAI in connection with which a failure would amount to a failure to review. 14 I see no error, nor has the appellant pointed to any error, on the part of the Federal Magistrate. His Honour gave careful consideration to each of the errors alleged by the appellant. His Honour was not obliged to seek out or to consider possible errors in the Tribunal's decision that were not raised before him by the parties. Indeed, the appellant does not point to any errors on the part of the Tribunal sufficient to establish jurisdictional error. It follows that Ground 2 does not assist the appellant. 15 Accordingly the appeal should be dismissed. 16 The Minister has filed an affidavit setting out the costs incurred and an estimate of the party-party costs that will be fully allowable. He seeks a fixed costs order of $3500, and I will make an order that the appellant pay the respondent's costs in that fixed amount. I certify that the preceding sixteen (16) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.
SZRIE
Minister for Immigration and Citizenship
[2012] FMCA 940
(2009) 259 ALR 429
(2001) 206 CLR 323
(2004) 78 ALJR 992
(2006) 228 CLR 152