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[2014] FCA 212
Federal Court of Australia
2014-02-24
Rares J
Original judgment source is linked above.
REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Circuit Court refusing the appellant constitutional writ relief from a decision of the Refugee Review Tribunal dated 9 November 2012: SZSHV as litigation guardian for SZSHW v Minister for Immigration [2013] FCCA 1784.
Background 2 The appellant was born on 4 August 2010 in Sydney, and has never visited India, which is the country of her nationality. The appellant's father acted as her litigation guardian in the Federal Circuit Court and in bringing and arguing this appeal. At the time of her birth, her parents were applicants for protection visas and were in the process of a review before the Tribunal. The appellant's birth here did not confer any status on her as an Australian citizen. On 29 October 2010, the Tribunal affirmed decisions of the Minister's delegate not to grant the appellant's parents protection visas.
The proceedings in the Tribunal 3 Subsequently, the parents applied for protection visas again, this time also on behalf of their infant daughter. The 2012 decision of the Tribunal to which I have referred held, correctly, that it had no jurisdiction in respect of the further claims of the parents. The father participated in the hearing in the Tribunal representing his daughter's interests. The Tribunal noted that, in dealing with the appellant's claim, her father had confirmed he was her legal guardian and able to articulate all her claims before it. That was unsurprising, since at the time she was just over two years old. The basis of the appellant's claim to protection, were she to be returned to India with her parents was the imputed fear of persecution, which her father had articulated were he and his family to return to India. 4 The Tribunal was not satisfied that any of the father's claims of his fear of persecution or of harm that he had suffered in India were credible. He had asserted that the appellant would suffer persecution as a result of being his daughter due to his Christian religion and missionary activities. The Tribunal identified this as a claim that the appellant was a member of a particular social group, consisting of Christian families in Kerala or families of Christian missionaries in that State. The father had claimed that he had been the victim of a group of persons who were determined to kill him and his family by reason of their membership of the BJP and RSS, being Hindu-oriented political parties and their affiliates active in India. He asserted that part of those persons' motivation came from his presence at an occasion at which a Hindu had been killed during an attack by Hindus on Christian missionaries in Orissa in 2004. 5 The Tribunal found that the father's account of the alleged incident in Orissa was marked by considerable vagueness and lack of circumstantial detail. It concluded that the father's evidence did not reflect any first hand authentic experience of the events that he had described. It also found that his claim to have been the target of a murder attempt by a group of RSS members near an airport was not at all plausible. The Tribunal said that, if the father had genuinely feared that he and his then family would be killed in India, it was difficult to understand why he would have allowed five weeks to pass after he had obtained his Australian visa before he left the country. It was not satisfied that his explanations for that delay were credible. The Tribunal also was not satisfied that it was at all plausible that the father would flee India because he feared he and his family had been targeted for murder, yet he would leave behind his first-born child, making no arrangements for her safety, leaving her in the very house in which she had lived and which was well known to his alleged Hindu enemies. 6 The Tribunal also put to the father, during the hearing, an account of the hearing which the earlier Tribunal had had with his wife (being the appellant's mother), concerning her claims to fear persecution and the incidents upon which those claims were based, were she to return with her husband to India. In that hearing, in contrast to her husband's evidence, the wife had said that she knew of only one incident of harm to her family, being an occasion on which a group allegedly had come to their house and demanded that she tell her husband to return to India. She claimed that, at this point, the group confronted her husband's uncle and allegedly killed him. The Tribunal put to the father at the 2012 hearing that his wife's evidence to the earlier Tribunal was inconsistent with his evidence and claim to both Tribunals that, in addition, he and his wife were at home on another occasion when his Hindu enemies tried to burn their house down. The Tribunal was not satisfied that the mother would have had no recollection of such a dramatic and memorable incident as her own house burning down if it had genuinely occurred. It found that that inconsistency cast doubt over the father's claim that the house had been bombed or burned down by Hindus who had targeted him. 7 During the course of its 2012 hearing, the Tribunal stated to the appellant's father that the various instances where it ultimately came to find his claims not to be credible, including the inconsistency of his wife's claims with his own in the earlier hearing, could lead the Tribunal to believe that the appellant would not suffer harm and that she did not have a well-founded fear of persecution in India were she to be returned there. The Tribunal invited the father to comment on that information or to respond to it in any way he wished, either immediately, at an adjourned session of the hearing or in writing with more time available for those purposes, if required. The father initially told the Tribunal that he wished to respond at an adjourned hearing but then changed his mind to say that he preferred to do so in writing. The Tribunal gave him two weeks to do so. It noted that nothing further was submitted by the father, other than an unsigned documentary submission attaching a number of media articles that had been downloaded from the internet. Those articles dealt with an outbreak of violence against Christians in Orissa in 2008 and similar incidents in other areas of India, including Kerala, at other times. At the end of the hearing, the Tribunal asked if there was anything the father wished to add and he replied that there was not. 8 Based on its non-acceptance of the father's claims of fear of harm and of past persecution, the Tribunal was not satisfied that there was a real chance that the appellant would suffer serious harm in India for reasons that her father claimed on her behalf or any other reason. Nor was it satisfied that she had a well-founded fear of persecution in India for a Convention-based reason now or in the reasonably foreseeable future. It also concluded that there was no basis for finding that there were substantial grounds to believe that, as a necessary and foreseeable consequence of the appellant being removed from Australia to India, there would be a real risk she would suffer significant harm in terms of s 36(2)(aa) of the Migration Act 1958 (Cth), being the complementary protection ground. 9 Next, the Tribunal also considered more generally whether the appellant's father and the rest of his family might face a risk of serious harm in Kerala as a result of their Christian religion. It did so on the basis that, while it did not accept his claim to being a Christian missionary, it did accept that the father and his wife were practising Christians and that the appellant herself was being raised in the Christian faith. The Tribunal accepted that there were reports in the independent country information of incidents of conflict between Hindus and Christians in Kerala and that, in some of those incidents, Christians had suffered violence. However, it was not satisfied that those incidents could be reasonably described as anything more than isolated and sporadic, or that Christians in Kerala were being prevented from worshipping freely and publicly or in any way being forced to be discreet in the manner in which they worshipped. The Tribunal was not satisfied that there was a real chance that the appellant's father or other members of his family, including her, would suffer harm in Kerala because of their Christian religion. Accordingly, it affirmed the delegate's decision not to grant the appellant a protection visa.
The proceedings in the Federal Circuit Court 10 The appellant's amended application in the Federal Circuit Court was drafted by counsel, although the appellant's father represented her at the hearing. The grounds of the amended application contended that the Tribunal's decision was affected by a jurisdictional error because it had failed to comply with the requirements of s 424A of the Act. That was because, allegedly, the Tribunal had not given the appellant particulars in writing of information concerning her mother's account of her fears and claims of past harm at the first Tribunal hearing and of that account's inconsistencies with her father's account at that same hearing in respect of the incidents affecting both of them, the subject of their claims for protection visas. The grounds contended that the exception in s 424A(2A) did not apply in the appellant's case because the Tribunal could not discharge its obligation with respect to the appellant simply by giving to her father orally the particulars of information, asking him to comment on behalf of his daughter and receiving his comments orally. 11 As his Honour noted, at the time of the hearing before the Tribunal, the appellant was two years and two months old. He considered the legislative scheme in Div 4 of Pt 7 of the Act. The trial judge set out and considered portions of the transcript of the proceedings before the second Tribunal at some length. Those portions dealt with the circumstances in which the Tribunal put to, and had sought comments or responses by, the father in respect of the information which the Tribunal considered might be the reason, or part of the reason, for affirming the decision under review. 12 His Honour concluded that he was unable to see any way in which it could be alleged that the Tribunal did not comply with the provisions of s 424AA and that, accordingly, it had complied with s 424A by reason of s424A(2A). He noted that the Tribunal had specifically asked the father whether he was her legal guardian and able to express all of her claims for a protection visa and that he had agreed he was. His Honour found that the father could be given the particulars under ss 424A and 424AA orally during the hearing of the application for review. That was because he was the litigation, or actual, guardian of his daughter and was conducting the proceedings in the Tribunal, as he has subsequently, on her behalf.
This appeal 13 The notice of appeal to this Court raised two grounds of alleged error, being that his Honour, first, failed to consider that the Tribunal had denied the appellant procedural fairness based on its failure to provide her with written particulars in accordance with s 424A and, secondly, had "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 [sic], specially the grounds of persecution in India". 14 At the hearing today, the appellant did not attend in person. But, he was contacted by telephone and presented his arguments through the interpreter. He argued that the Minister's delegate had not interviewed him. He also argued that the Tribunal had not interviewed his daughter or conducted fresh interviews, presumably with his wife. He contended that the Tribunal had done just what the Department had done in considering the application. He said that he was not familiar with the intricacies of ss 424A and 424AA. 15 The father had raised a similar complaint about the failure of the delegate to interview him before the trial judge. His Honour had said that any deficiency in the process before the delegate had been cured by the full merits review afforded by the Tribunal and that it had interviewed the appellant's father. That was undoubtedly correct. Although this complaint was not a ground of review, it is clear that the appellant, through her guardian, obtained a comprehensive hearing de novo on the merits before the Tribunal. 16 The first ground of appeal, in essence, was that the Tribunal could not treat the father as the two year old applicant for review for the purposes of ss 424A and 424AA. Instead, the appellant contended, it had to give the particulars of matters that it could have put orally to a capable applicant only in writing to the incapable two-year-old so that her father, as guardian, would receive them in a letter. Here, the father has been the person who has prosecuted all of the appellant's claims on her behalf, first, in her application for a protection visa itself, and, secondly, in the application for review before the Tribunal and then in both Court proceedings. That is hardly surprising, given that the appellant is a child now three and a half years old who could not possibly articulate any arguments on her own behalf. A parent has authority to act on behalf of his or her child at common law where the child lacks capacity: Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 40 [103] per McHugh J, 59 [159] per Gummow J, 76-77 [226] per Hayne J and 87 [270] per Heydon J, who agreed with Hayne J. Accordingly, the father, as guardian of the appellant, has had the legal authority to act for her at all times in the visa application and review process. No doubt the father's actions have been intended to advance his daughter's interests as best he could on her behalf. 17 I am unable to see any error in the way in which his Honour dealt with the application for constitutional writ relief before him or in the way in which the Tribunal acted with respect to the appellant's application for review. The only way in which the application for review could be conducted was by means of the agency of the appellant's father acting as her guardian. In the circumstances, the provision of information to him orally and the invitation the Tribunal extended to him to respond, which he ultimately chose to accept by doing so in writing, complied with the requirements of ss 424A(2A) and 424AA. 18 An invitation to respond given in writing under s 424A is no more meaningful than an invitation to respond orally under s 424AA when the applicant for review before the Tribunal is a child incapable of representing his or her own interests and where those interests are represented by the child's parent or other guardian advancing the child's claims on the review on the child's behalf. Since the whole of the appellant child's claims for a protection visa in this matter were dependent on the claims made by her father as to his fears were he and his family to return to India, the opportunity given by the Tribunal to the father to respond to its concerns plainly complied with the its obligation under s 422B(3) to act in a way that was fair and just. The father was clearly on notice as to the information of which the Tribunal had to give particulars under ss 424A and 424AA at the time of the hearing. He elected, first, to respond to those concerns in writing, which he exercised to some extent and, secondly, to advise the Tribunal orally at the conclusion of the hearing that there was nothing further that he wished to say. 19 Accordingly, I am satisfied the Tribunal discharged its obligations to the appellant under ss 424A and 424AA by the method in which it gave her father the relevant particulars orally and offered him the opportunity to respond. The first ground of appeal therefore fails. 20 The second ground of appeal is a template ground and has no intelligible relationship with the decision of the trial judge. It is entirely unparticularised and raises matters that were not the subject of the hearing before his Honour. The appellant did not articulate any intelligible basis upon which that ground could be understood. There is no reason in these circumstances why I should deal with it except to note that an appeal is a process of identifying and correcting alleged errors in the decision of the judge below. It is not a completely new proceeding in which allegations of error at trial can be made at large. To the extent that the second ground seeks to argue matters that were not in issue below, it must be rejected: Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ. For these reasons, the second ground fails.
Conclusion 21 The appeal must be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.
SZSHY
Minister for Immigration and Border Protection
(1986) 162 CLR 1
(2004) 225 CLR 1