SZTGS v Minister for Immigration and Border Protection

FFC decision 9 By application filed on 13 September 2013 the applicant sought judicial review of the RRT's decision. The application contained the following grounds: 1. The Tribunal failed to consider an integer of the applicant's claims, in failing to consider whether or not the applicant in India was at risk of harm from Muslim extremists, and not able to access effective protection. The Tribunal's decision was fundamentally influenced by not receiving evidence from the applicant at hearing. 2. The applicants satisfy the key elements of Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error. 3. The Tribunal failed to investigate applicant's claim, specially the grounds of persecution in India. Therefore, the Tribunal dated 19 August 2013 was effected by actual bias constituting judicial error. 10 The applicant did not provide written submissions or any evidence in support of his application. 11 However, the applicant appeared in person at the FFC hearing with the assistance of an interpreter. 12 The matter was set down for hearing pursuant to r 44.12 of the FCC Rules, which required the primary judge to consider whether he was satisfied that the applicant had raised an arguable case for the relief claimed. 13 The primary judge described the grounds for judicial review as "formulaic" (at [9]). He observed that "the applicant did not attend the Tribunal hearing, yet almost all the grounds contained in his application appear to proceed on that basis". 14 The primary judge noted that, at the hearing, the applicant claimed that the reason he had not attended the RRT hearing was that he had been ill. However, there was nothing to show that the applicant attempted to contact the RRT to advise it of his difficulty or otherwise to seek an adjournment of the hearing. His Honour considered this complaint in detail, and concluded that it did not raise any arguable case for the relief sought by the applicant. 15 As to the first ground of review, the primary judge concluded: a. On what was before the RRT, it could not reach the requisite level of satisfaction that the applicant met the relevant criteria for the grant of a protection visa. The primary judge said (at [26]): "[The Tribunal] explained why this was the case. No legal error is revealed in these circumstances. No arguable case is raised for the relief sought"; b. There was no evidence that the applicant claimed to fear harm from "Muslim extremists". At best, the applicant's claim was that he feared harm from the Muslim community generally; c. There was nothing to show that the Tribunal overlooked or misunderstood the applicant's claims; d. It was difficult for the Tribunal to reach the requisite level of satisfaction in circumstances where the applicant did not attend the hearing, and the Tribunal had put the applicant on notice that it could not reach the requisite level of satisfaction on the material before it; e. Ground one also appeared to complain that the RRT should not have proceeded to make its decision without receiving evidence from the applicant at a hearing. The circumstances demonstrated that the Tribunal was entitled to proceed pursuant to s 426A of the Act. 16 As to the second ground of review, the primary judge said: Plainly the Tribunal did consider whether the applicant's circumstances came within the relevant Refugees Convention definition. On what is before the Court, the ground is no more than an expression of grievance with the Tribunal's conclusion, and not an assertion of legal error. 17 As to the third ground of review, the primary judge rejected it insofar as it was directed to the Tribunal's decision to proceed pursuant to s 426A. Insofar as it was directed to some other investigation, his Honour noted that there was no general duty on the Tribunal to make inquiries and there was no obvious inquiry of the kind referred to in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25]. It followed that neither the decision to proceed, nor the failure to make an investigation concerning the applicant's claim gave rise to arguable claim of bias. 18 Accordingly, the primary judge dismissed the application at the hearing.

Principles governing leave to appeal 19 The principles governing the grant of leave to appeal are well established. Although each case must be considered on its merits, generally an applicant for grant of leave must establish: (a) that, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and (b) that substantial injustice would result if leave were refused, supposing the decision to be wrong: DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400, [1991] FCA 655 at [2] ("DÉcor Corporation"); Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564, [2000] FCA 1572 ("Johnson Tiles") at [44]; Samsung Electronics Co. Ltd v Apple Inc (2011) 217 FCR 238, [2011] FCAFC 156 at [26]-[30]. 20 Leave will be more readily granted where an interlocutory decision determines a substantive right, rather than a mere point of procedure: MZXGP v Minister for Immigration and Multicultural Affairs [2006] FCA 1075 at [12], citing DÉcor Corporation at 400 and Eltran Pty Ltd v Westpac Banking Corporation (1988) 32 FCR 195 at 202. 21 In Johnson Tiles, French J said (at [43]): If a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory. However, leave will usually be granted in such a case if there is any doubt about the decision at first instance - Little v Victoria [1998] 4 VR 596 at 598-600 and 601 (Callaway JA, Buchanan JA agreeing).

Is the FCC decision attended by sufficient doubt to warrant reconsideration? 22 The primary judge dismissed the application because he was not satisfied that the application has raised an arguable case for the relief presumably sought. 23 In other contexts, an appeal against a finding of satisfaction as to a matter is subject to the same principles that apply to an appeal from a discretionary decision: see Singer v Berghouse (1994) 181 CLR 201 especially at 210-212; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 especially at [19], [27], [32] and Russo v Aiello (2003) 215 CLR 643 at [27]. 24 Applying these principles in this case, the applicant must demonstrate sufficient doubt that, in failing to be satisfied that the application had raised an arguable case for relief, the primary judge: a. Acted upon a wrong principle; b. Allowed extraneous or irrelevant matters to guide or affect him; c. Mistook the facts; d. Did not take into account some material consideration; or e. Reached a result that is plainly unreasonable or unjust: House v R (1936) 55 CLR 499 at 504-505. 25 The grounds of appeal set out in the applicant's proposed notice of appeal are: 1. The [primary judge] failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant's 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 [primary judge] failed to consider that the Tribunal had no jurisdiction to make the said decision because its ''reasonable satisfaction ''was not arrived at in accordance with the requirements of the Migration Act. 26 The grounds of appeal are imprecise and hard to understand. Similar grounds of appeal have been recently considered by the Court in SZSRV v Minister for Immigration and Border Protection [2014] FCA 220 ("SZSRV"), BZAET v Minister for Immigration and Border Protection [2014] FCA 521 and SZRIO v Minister for Immigration and Border Protection [2014] FCA 599. 27 In SZSRV, Flick J identified two possible interpretations of a ground of appeal substantially identical to the first ground of appeal in the applicant's proposed notice of appeal, being: a. That the primary judge erred in rejecting the argument advanced before the FCC; or b. An attempt to assert that the claims to "persecution and harm" were not genuinely considered by the RRT. 28 In my view, reading the first ground of appeal in either of the ways identified by Flick J, the following matters raise a sufficient doubt as to the correctness of the primary judge's decision to warrant a grant of leave to appeal: a. The primary judge said that the RRT had explained why it could not reach the requisite level of satisfaction. In my opinion, it is at least arguable that the RRT's reasons do not contain any or any adequate explanation of that matter; b. the RRT's Decision Record must be understood in the light of the statutory requirements in s 430: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5] (Gleeson CJ); [35] (Gaudron J); [69] (McHugh, Gummow and Hayne JJ) ("Yusuf"). It is at least arguable that the paucity of the RRT's reasons may indicate a failure on the part of the RRT to have engaged in the "active intellectual process" required to consider a claim: cf NAJT v Minister for Immigration and Multicultural & Indigenous Affairs (2005) 147 FCR 51 at [46] (Hill J) and [212] (Madgwick J). See also Yusuf at [41] and [43], NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470 and Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164. c. the grounds of review advanced before the FCC included that the RRT had "failed to consider an integer of the applicant's claims" and that the Tribunal had not considered the "aspect" that the applicant satisfied "the key elements of Convention definition". It is arguable that the primary judge construed the grounds advanced in the application too narrowly and, consequently failed to consider a matter sought to be raised by the applicant, namely that there had been a constructive failure by the RRT to exercise its jurisdiction; d. as mentioned at paragraph [13] above, the primary judge stated that "the applicant did not attend the Tribunal hearing, yet almost all the grounds contained in his application appear to proceed on that basis". It is arguable that none of the grounds in the application proceeded upon the false premise that the applicant had attended the Tribunal hearing. Thus, this statement may support a contention that the primary judge misconstrued the grounds of review advanced before the FCC.

Conclusion 29 Accordingly, leave will be granted to appeal from the decision of the FCC. 30 In my opinion, having regard to the nature and complexity of the proceedings, this is a suitable case for referral for legal assistance pursuant to r 4.12 of the Federal Court Rules 2011. Accordingly, I have determined that SZTGS be referred for legal assistance under r 4.12. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson j.