SZEPQ v Minister for Immigration and Citizenship

[2008] FCA 1786

FEDERAL COURT OF AUSTRALIA

SZEPQ v Minister for Immigration and Citizenship [2008] FCA 1786

SZEPQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1569 OF 2008

RYAN J
24 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1569 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEPQ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RYAN J
DATE OF ORDER:	24 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s, costs fixed in the sum of $2,100.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1569 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEPQ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RYAN J
DATE:	24 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application to the Court in the form of an application for leave to appeal from orders made by Cameron FM on 18 September 2008. By those orders, the learned Federal Magistrate dismissed an application, pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”), for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal’s decision was handed down on 8 January 2008 and was accompanied by the learned Federal Magistrate’s reasons under the name SZEPQ v Minister for Immigration & Anor [2008] FMCA 1231. By its decision, the Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (“the Minister”) to refuse to grant a protection (class XA) visa to the appellant. Although the application was accepted for filing in the Registry, it is apparent, as Mr Reynolds of Counsel for the Minister has pointed out, that leave to appeal was not required. Neither party opposed this Court’s considering the matter as if a properly constituted appeal were before the Court.

   Background

2. The appellant is a citizen of India who arrived in Australia on 30 November 2003.  On 23 December 2003, he lodged an application for a protection visa with the Department of Immigration and Citizenship.  On 27 February 2004, a delegate of the Minister refused the application for a protection visa.  The appellant applied to the Tribunal for a review of that decision and, on 31 August 2004, the Tribunal, differently constituted, affirmed the decision of the delegate.  The appellant sought judicial review and, on 10 February 2006, Tamberlin J of this Court set aside the decision of the Tribunal and remitted the matter to the Tribunal for rehearing. 

3. On 28 November 2006, the Tribunal, again differently constituted, affirmed the decision of the delegate.  The appellant again sought judicial review and, on 29 May 2007, the Federal Magistrates Court set aside the Tribunal’s decision and again remitted the matter to the Tribunal. 

   The decision of the Tribunal

4. Before the Tribunal as last constituted, the appellant claimed to fear persecution in India because of his Sikh religion and his imputed political opinion arising out of his role in the Khalistan Liberation Army (“the KLA”) and the Akali Dal (Mann) political party.  The appellant alleged that he was a high profile member of the KLA and had subsequently been placed on a government black list.  He further claimed that, as a result, he had often been detained, interrogated and tortured by the Indian police.  As well, the appellant claimed to fear persecution by reason of his father’s heavy involvement in the Khalistan independence movement. 

5. The Tribunal did not accept that the appellant was a credible witness or that he had told the truth about his involvement with the KLA or had been a KLA member from 1990.  Nor did the Tribunal accept that the appellant’s father had played a prominent role in the Khalistan independence movement, noting that the appellant’s claims, in this respect also, had been vague and lacking in detail.  As well, the Tribunal declined to accept that the appellant had a well-founded fear of persecution by reason of his Sikh religion or his membership of the Akali Dal (Mann) party. 

6. The Tribunal accepted that the appellant had been an ordinary member of that party and might continue to be so if he were to return to India.  However, it did not accept that he would become a high profile party member or would engage in high profile support for the Khalistan independence movement if he returned to India.  Accordingly, the Tribunal did not accept that he would come to the attention of the authorities if he were to return to India. 

   The decision of the Federal Magistrates Court

7. On 5 February 2008, the appellant applied to the Federal Magistrates Court for review of the Tribunal’s decision.  The learned Federal Magistrate, at [15] of his reasons, made this summary of the appellant’s claims;

   ‘a)The Tribunal reached conclusions “contrary to the facts and all the information constructively available on file thus refuting the credibility and honesty of the applicant openly and acting biasly [sic]”;

   b)“the Tribunal was unreasonable in holding that the Applicant was not able to provide certain information”;

   c)the Tribunal failed to comply with s 424A of the Migration Act 1958 (“Act”);

   d)the Tribunal breached s.430(1)(c) and (d);  and

   e)the Tribunal was manifestly unreasonable.’

   His Honour, after considering the Tribunal’s decision in light of the claims made by the appellant, dismissed the application. 

8. The appellant had particularised the claims made in his first ground by referring to the following passage in the Tribunal’s decision record (p 23);

   ‘The Tribunal finds that the applicant has not given a credible account of key aspects of his claims.  The Tribunal finds that the Applicant’s evidence about important aspects of his claims are vague and lacking in detail.  For these reasons, the Tribunal does not accept that the Applicant is a credible witness and does not accept that the applicant is telling the truth about his involvement with the KLA.’

9. His Honour found that the conclusion reached by the Tribunal was one which was logically open to it.  Furthermore, in the absence of a transcript, his Honour could find no evidence to lead to the conclusion that a fair-minded, lay observer properly informed about the nature of the proceedings, the matters in issue and the conduct which was said to give rise to an apprehension of bias, might reasonably have apprehended that the Tribunal had not brought an impartial and unprejudiced mind to the resolution of the question it was required to decide;  see Johnston v Johnston (2000) 201 CLR 488 and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.

10. The appellant had particularised the allegation embodied in his second ground of appeal by referring to the following passage in the Tribunal’s decision;

    ‘The Tribunal finds that the applicant’s claims about his father’s involvement with the KLA were vague and lacking in detail.  He claims that his father spoke at meetings and rallies, but he was unable to describe what those meetings and rallies were about or how his father went about winning the support for the creation of Khalistan.’

11. His Honour found that, rather than identifying jurisdictional error, this allegation merely sought review of a finding of fact by the Tribunal.  This conclusion of the Tribunal was open to it on the evidence before it. 

12. In particularising his third ground, the appellant had referred to this passage from the Tribunal’s decision (p 25);

    ‘… the applicant’s own evidence was that he did not experience any problems as an ordinary member of the Akali Dal (Mann) party between 1998 and 2002.  The Tribunal does not accept the applicant’s claims that he was again targeted in 2002, simply because the Congress Party came to power.  As indicated by the country information quoted above, relations between the Congress Party and Sikhs have now improved (see BBC report, 16 March 2005).  In addition, the Tribunal has not accepted that the applicant had a previous profile that would cause the Congress Party or the Indian authorities to specifically target him after the Congress Party came to power.

    … the applicant’s claims that ordinary members of the Akali Dal (Mann) party would suffer persecution is not supported by the country information.  The country information referred to above indicates that there is little evidence that members or supporters of the Akali Dal (Mann) party in Punjab are being systematically targeted for arrest or other forms of mistreatment. …’

13. His Honour found that s 424A(3)(a) clearly creates an exception to the requirement to give an applicant particulars of information upon which the Tribunal might rely in affirming the delegate’s decision when the information is not specifically about the applicant and is just about a class of persons of which the applicant is a member.  As a result, there was no jurisdictional error in the Tribunal’s omission to give s 424A(1) notice to the applicant particularising independent country information.  As to the allegation embodied in his fourth ground, the appellant gave particulars, referring to the following passage in the Tribunal’s decision (at p 26):

    ‘For the above reasons, the Tribunal does not accept that the applicant was a high profile member of the Akali Dal Party.  The Tribunal has already rejected his claims that he was on a ‘blacklist’ of the Indian authorities due to his earlier activities with the KLA.  Therefore, the Tribunal does not accept that the applicant was on the Congress Party’s blacklist after it came to power in 2002.  The Tribunal does not accept the applicant’s claims that the police came to his village after 2002 and interrogated him.  The Tribunal does not accept that he was beaten and interrogated by police in the summer of 2002 or that the police detained and interrogated his wife after he left his home.

    The Tribunal accepts that the applicant continues to be an ordinary member of the Akali Dal (Mann) Party and may continue to be a member on his return to India.  However, the Tribunal does not accept that he would become a high profile member of the Akali Dal (Mann) Party if he returned to India or engage in high profile support for the Khalistan independence movement.  Therefore, the Tribunal does not accept that he would come to the attention of the authorities if he returned to India, as the country information indicates that ordinary members are not targeted by the authorities. …’

14. In sum, his Honour found that the evidence on which this conclusion was based was set out in the Tribunal’s decision record, as were the relevant intermediate findings of fact. These conclusions were clearly founded on that evidence and the intermediate findings so that there was no breach of s 430 of the Act.

15. The appellant particularised the allegation related to his fifth ground by referring to this passage in the Tribunal’s decision (pp 26 - 27);

    ‘The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of his membership of the Akali Dal Mann Party and his political opinion. 

    CONCLUSION

    The Tribunal has considered each of the applicant’s claims individually and cumulatively.  The Tribunal is not satisfied that there is a real chance that the applicant will be persecuted for a Convention reason if he returns to India.  The Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason.’

16. His Honour, at [41] of his reasons, summarised the submission of the appellant in relation to this ground as alleging that the Tribunal;

    ‘a)      approached the review having already pre-judged the issue;

    b)        did not have cogent evidence to justify its ultimate conclusion;  and

    c)        failed to apply the correct test.’

17. In relation to the first issue, his Honour noted that he had already rejected the suggestion that the Tribunal had not entered on the review with an open mind. As to the second issue, his Honour found that the factual findings of the Tribunal had been open to it on the evidence before it. Thirdly, the Tribunal had clearly applied the right test in accordance with s 65 of the Act. For these reasons, his Honour declined to impute jurisdictional error to the Tribunal and, therefore, dismissed the appeal.

    The appellant’s application for leave to appeal

18. On 3 October 2008, the appellant filed in this Court the application for leave and a supporting statutory declaration made on 3 October 2008.  In the draft notice of appeal attached to his affidavit, the appellant raised the following nine grounds of appeal:

    ‘1.The Honourable Federal Magistrate Cameron of Federal Magistrates Court, Sydney, did not consider that the Applicant is entitled for the protection Visa on the basis of real fear and persecution from Indian Police and Authorities and the applicant was really persecuted in India by authorities as being an active member of the Khalistan Liberation Army.

    2.The Honourable Federal Magistrate did not consider the submissions and Affidavit, which was submitted before the Court and Applicant’s oral and written evidence and documents were ignored by the Refugee Review Tribunal. The applicant appeared before the Tribunal to provide an interview. 

    3.The Honourable Magistrate did not observe the procedures that were required by the Migration Act or the Regulations to be observed in connection with the making of the decision. 

    4.The Appellant was not provided an opportunity by the Honourable Magistrate to provide any additional evidence in regard to the fear and persecution mentioned in the Appellant’s statement.

    5.That the appellant would like to bring your kind attention and the Immigration Minister to the fact that my understanding is that it has been admitted by the Courts and the Australian Government that the organisation I belong to, has been wiped out.  In the situation of rejecting my application for the protection Visa and sending me back to India would tantamount to the Australian Government condemning to my certain death, especially when the Australian Government and the Courts has admitted to the effect that the Indian Government has wiped out by freedom and liberty, which I belong to.  I would further like to submit that I request for the justice to be prevailed and I may be allowed to stay in Australia on the basis of protection Visa and Asylum. 

    6. The Appellant also submits that the Honourable Magistrate did not consider the relevant facts, which the appellant produced before the Tribunal at the time of interview and the Appellant considers that the claims made before the Tribunal and the Department of Immigration are true and correct to the best of the Appellant’s knowledge. 

    7.That the Honourable Magistrate did not consider the fact that the appellant was unable to engage a legal representative due to financial difficulties and the Appellant did not have any legal representative.

    8.The Honourable Magistrate did not consider the documents submitted before the Tribunal in support of the Appellant’s application and moreover the Appellant has received more important documents from overseas and would like to submit before the Honourable Court and seek permission to produce these documents. 

    9.The decision involved an error of law being and incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal.’

19. By the same notice, the appellant sought relief in the following terms: 

    ‘1.A declaration that the decision of the Honourable Magistrate Cameron FM dated 18 September 2008, is invalid and contrary to law.

    2.An Order setting aside the decision.

    3.An Order that the Federal Court give consideration according to law to all matters to which the decision relates, subject to such direction as the Court think fits.

    4.An injunction, both interim and interlocutory restraining the Respondent, his delegates, officers, servants and agents, pending the determination of these proceedings or further Order from removing the Appellant from Australia.

    5.An order that the Appellant to be allowed to work full time until the decision of the Appeal.

    6.An order that the Respondent pay the Appellant’s costs of this proceeding.

    7.Such any further Orders as the Court thinks fit.’

20. Although Deputy Registrar Morgan made a direction on 24 October 2008 that, amongst other things, the appellant file and serve written submissions no later than five clear working days before the hearing date, that direction has not been complied with. 

    The Minister’s submissions

21. In written submissions, the Minister contended that the nine grounds in the draft notice of appeal had not been raised at first instance and suggested that the appellant appeared to be seeking leave to raise them as new grounds of appeal.  In relation to the first ground of appeal, the Minister submitted that it improperly sought a merits review and should, therefore, be disregarded. 

22. The Minister next contended that the second ground of appeal should be refused on the basis that:

    ‘(a)     first, to the extent that the appellant submits that his submissions were not considered by the learned Federal Magistrate, the appellant has not particularised any instance of a submission being raised below but ignored.  On the face of the decision below, the appellant’s submissions were considered by the Tribunal.  In any event, this does not identify jurisdictional error on the part of the Tribunal;

    (b)      second, to the extent that the appellant submits that an affidavit submitted to the Court below was not considered, the only affidavit that was filed below was that which was filed together with the application for judicial review below.  The affidavit raises a number of matters that can fairly be described as pertaining to merits review and, in any event, unrelated to the grounds pleaded below.  Accordingly, it did not raise any matter that required express consideration. 

    (c)       Third, to the extent that the appellant submits that his oral and written evidence and documents were not considered by the Tribunal, the first respondent submits that the appellant has not particularised what he said was not considered and, on the face of the Tribunal’s decision …… it appears that each of the matters raised by the appellant and the evidence submitted by him in support of his application was considered and dealt with - the Tribunal simply did not accept that they made out the appellant’s claims;  and

    (d) Fourth, in relation to the complaint that the appellant appeared before the Tribunal to provide an interview, it is not clear what is meant by this. The fact that the appellant attended before the Tribunal to “provide an interview” does not amount to jurisdictional error but, to the contrary, establishes that the Tribunal complied with its obligation under s 425 of the Act.’

23. Similarly, the Minister contended that the third ground of appeal lacked any prospect of success as the appellant had failed to particularise “procedures” under the Act which he alleged the Tribunal and the Federal Magistrate had failed to follow and had failed to explain how such a failure constituted jurisdictional error. With respect to the fourth ground of appeal, the Minister submitted that a complaint that Cameron FM had not allowed the appellant to prove the merits of his case before the Court below, did not identify jurisdictional error on the part of the Tribunal.

1. The Minister further submitted that the fifth and sixth grounds in the notice of appeal ought to be refused because the former was merely “a discursive passage” and both paragraphs sought to “re-agitate” the merits of the appellant’s case. The seventh ground, it was submitted, did not purport to identify legal error on the part of the Tribunal.  The Minister noted that an appellant’s inability to afford legal representation was not a recognised ground of judicial review and that, in any event, this issue had not been raised before the Federal Magistrates Court.

2. In relation to the eighth ground of appeal, Counsel for the Minister asserted that the appellant had failed to identify jurisdictional error on the part of the Tribunal and, in any event, had failed to specify which particular documents the Court had failed to consider.  Moreover, the Minister contended, this ground of appeal impermissibly invited this Court to conduct a merits review by examining evidence that had not been presented to the Tribunal.

3. Finally, the Minister submitted that the ninth ground failed to identify any legal error behind the reasoning of the Federal Magistrate and further that “the law” said to be incorrectly interpreted or applied had not been identified and, on the face of the Tribunal’s decision, there did not appear to be anything to match the description of this alleged error.  For the reasons outlined, the Minister submitted that the appeal should be dismissed with costs. 

   Disposition of the appeal

4. I propose, in the circumstances, to treat the application for leave to appeal as an appeal properly constituted and to treat the grounds of appeal as being those set out in the draft notice of appeal annexed to the statutory declaration in support of the application for leave to appeal.  Mr Reynolds of Counsel for the Minister, as I understand it, did not oppose my taking that course.  I accept the submissions advanced on behalf of the Minister that the nine grounds, or purported grounds, which I have set out already, are not, certainly as to the greater part of them, proper grounds of appeal from the orders of the Federal Magistrates Court.  Some seek to raise matters of fact of which the Tribunal was the sole judge.  Others raise matters which were not urged before the learned Federal Magistrate and would, therefore, require the leave of this Court before they could be raised on appeal. 

5. The appellant indicated that the application for leave to appeal had been prepared by “a friend of a friend”.  He did not seek to advance any oral argument in support of his application or in support of the appeal which, as I have indicated, the Court is now entertaining.  Nor did the appellant seek to reply to any of the written submissions advanced on behalf of the Minister, a copy of which had been supplied to him before the commencement of this hearing. 

6. I am satisfied that the new grounds invoked by the appellant do not, either individually or when read as a whole, demonstrate any error on the part of the learned Federal Magistrate.  The Federal Magistrates Court, in conducting a review of the decision of the Tribunal as last constituted, was confined to identifying whether or not that Tribunal had been guilty of jurisdictional error.  For the reasons which the learned Federal Magistrate explained, no such identification was possible.  I have been unable to discern any error in those reasons.  Nor have I been persuaded to allow the appellant to raise any of the fresh grounds which have been articulated as proposed grounds of appeal.  Accordingly, for these reasons, the appeal must be dismissed with costs fixed in the sum of $2,100.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:        27^th November 2008.

Counsel for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Mr P Reynolds
Solicitor for the Respondents:	Clayton Utz

Date of Hearing:	24th November 2008
Date of Judgment:	24th November 2008