SZJSA v Minister for Immigration and Citizenship

[2008] FCA 272

FEDERAL COURT OF AUSTRALIA

SZJSA v Minister for Immigration and Citizenship [2008] FCA 272

Judiciary Act 1903 (Cth), s 39B
Migration Act 1958 (Cth)

Coulton v Holcombe (1986) 162 CLR 1, cited
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, distinguished

SZJSA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD2397 OF 2007

LOGAN J
4 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2397 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJSA
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	4 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the First Respondent’s costs of, and incidental to the appeal, to be taxed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD2397 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJSA
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	4 MARCH 2008
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. The Appellant is an Indian citizen.  He came to Australia in March 2006.  In May 2006 he applied for what is known as a protection visa.  The basis of that application was membership of a particular social group as well as religious and political grounds.  The essence of the claim that the Appellant made is that he is a member of the Muslim faith who assisted Hindus from poor and lower castes and tried to convert them to Islam.  In amplification of that claim the Appellant stated that he was a member of what is known as the Students Islamic Movement of India and that he did social work for this organisation.

2. More particularly, the claim that he made was that he had been persecuted by Hindu extremists and that he had suffered violence at the hands of these extremists.  The Appellant’s visa application was refused by a delegate of the Minister for Immigration and Citizenship in June 2006.  As was his right, he sought a review on the merits of the Minister’s delegate’s decision by the Refugee Review Tribunal (“Tribunal”).  That Tribunal affirmed the Minister’s decision.  In turn the Appellant then sought to challenge the Tribunal’s decision on legal error grounds before the Federal Magistrates Court.  It is from the Magistrate’s decision that he now appeals to the Federal Court in its appellate jurisdiction.

3. For the purposes of the hearing of such an appeal, a Full Court, perhaps curiously, is constituted by one judge.  As is not uncommon in cases such as this, the Appellant has the difficulty of distinguishing between the role that the Tribunal has and the role that is consigned to the Federal Magistrates Court and in turn to the Federal Court.  The distinction between merits review by a Tribunal, review on legal error grounds, and in turn the exercise of an appellate jurisdiction needs firmly to be borne in mind.  In the event that I found that the Federal Magistrate’s decision was affected by legal error on a ground advanced in the notice of appeal, or permissibly added to the notice of appeal, it would be open to me to set aside the Magistrate’s decision and to require that the Appellant’s case be heard again on its merits as to whether a visa should be granted by the Tribunal.  The nature of the jurisdiction consigned to the Federal Court also affects the relevance of an affidavit filed on 20 February 2008 upon which the Appellant sought to rely in support of his appeal.  In limited circumstances and subject to well settled principles, it is possible for this Court, exercising appellate jurisdiction, to receive fresh evidence.

4. The occasion for that, though, is necessarily affected by the nature of the decision which is under appeal.  In this case, the decision under appeal was of the nature of a review on administrative law error grounds of a decision of an administrative tribunal.  In those circumstances the occasion, both for the Magistrate and even more so for this Court, for the reception of fresh evidence is extremely limited indeed.  The only relevance that I can see that the affidavit would have is in relation to deciding whether remission to the Tribunal should be ordered in the event that there were some error found, by me, in the Magistrate’s decision.

5. In other words, the contents of the affidavit going, as they do, to enlarge upon the claims for protection visa have no direct relevance at all to the merits of the appeal.  Instead all that they could do is to underscore why it is that sending the case back to the Tribunal would not be an exercise in futility if the appeal were meritorious. 

6. The basis upon which the Appellant has sought to challenge the Federal Magistrate’s decision is set out in the notice of appeal filed in this Court.  That notice advances grounds numbered 2 through to and including 9.  It is possible to discern other bases of challenge from the contents of the Applicant’s written submissions filed in the court on 22 February 2008.

7. Those supplementary grounds might be summarised as follows:

   (a)an alleged failure to follow proper procedure, as required by the Migration Act 1958;

   (b)an alleged ignoring of relevant evidence;

   (c)related to (b) an alleged actual bias on the part of the tribunal;

   (d)an alleged denial of procedural fairness; and

   (e)an alleged ignoring of the merits of the claims for protection visa. 

8. There is a question as to whether leave should be granted to amend the notice of appeal. As was observed by the High Court in Coulton v Holcombe (1986) 162 CLR 1, at page 7:

   “To say that an appeal is by way of re-hearing does not mean that the issues and the evidence to be considered are at large.  It is fundamental to the due administration of justice, that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.  ”

9. To permit these amendments to the notice of appeal would have about it, in my opinion, a tendency to reduce the proceedings in the Federal Magistrates Court to “little more than a preliminary skirmish”. 

10. If it were the case that on examination, a ground of additional challenge had about it, even arguably, the likelihood that the proceedings in the Refugee Review Tribunal had completely miscarried at law, then of course the amendment of a notice of appeal would be readily granted.  I do not see that any of the bases additionally advanced in the Applicant’s submissions, have about them that quality in the circumstances of this particular case.  I therefore do not propose, insofar as one might infer a request to amend the notice of appeal from the way in which the written submission has been cast, to allow such amendment.  Instead I propose to consider, in more detail, the merits of the grounds of appeal as identified in the notice of appeal.

11. The first such ground is that the Federal Magistrates Court failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903.  That ground is aptly described as generic.  By that I mean that the ground is generally stated and without particular engagement with the merits or otherwise of the particular decision given by the Magistrate.  It is unfocused and whatever particularity of challenge there is in this appeal to the Magistrate’s decision is not to be found in ground 2.  Instead, such particularity as there is in the grounds of appeal is to be found in later grounds.  Ground 3 is similarly generic.  It alleges that the Federal Magistrate dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.  Cast in such general terms and in the face of the detailed reasons for judgment of the Federal Magistrate, ground 3 is essentially meaningless. 

12. Ground 4 is more particular.  It alleges that the Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down by a Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. That case deals with the application of what is known as the “Internal Protection Principle”. More particularly, it addresses whether a person who has a well-founded fear of persecution in one region of his or her country of nationality can nonetheless reasonably avail himself or herself of protection within another region of that country. On behalf of the Minister it has been submitted that the principles discussed in that case only arise where there has been a finding that the protection visa applicant has a well-founded fear of persecution.

13. If there is no finding of a well-founded fear of persecution, questions of relocation and of the application of an internal protection principle do not arise.  The Appellant’s difficulty in this case in relation to ground 4 is that there is a finding by the Tribunal that he does not have a well-founded fear of persecution.  In turn, that finding of the Tribunal is a finding that seems, to me, to be one that was reasonably open to the Tribunal to make.  That seems to have been the view of the Federal Magistrate and I see no error in that view.  In the absence of that foundation, ground 4 must necessarily fail. 

14. Ground 5 is in these terms:

    The Federal Magistrate failed to take into consideration that the tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim.

15. My reading of the Federal Magistrate’s decision is that the Magistrate considered in detail the approach that the Tribunal had taken to the appellant’s claim for a protection visa.  The conclusion reached by the Federal Magistrate was that the Tribunal did consider the appellant’s situation in relation to the claim he advanced for a protection visa.  The Magistrate correctly apprehended that the Tribunal had accepted some aspects of the Appellant’s claims and rejected others on the basis of credibility.  The Magistrate noted that the Tribunal accepted that the Appellant had been subject to physical harassment in 2003.  As was appropriate, though, the Magistrate conceded to the Tribunal the role of making value judgments on the merits.

16. It is apparent to me that the merits of the Appellant’s claim for a protection visa were considered by the Refugee Review Tribunal.  So much was also apparent to the Federal Magistrate.  I see no error in the Magistrate’s conclusion that the Tribunal had dealt with the Appellant’s claim for protection visa on the merits.  It is important for the courts, in exercising a judicial review and even more so an appellate jurisdiction, to adopt a principled restraint in the interference with value judgments by administrative tribunals on factual matters.  Ground 5 necessarily fails. 

17. Ground 6 is that the Tribunal:

    …emphasised on some irrelevant question at the oral evidence and ignored my political background that put my life in risk.  In doing so the tribunal may be said to have ignored relevant material, relied in part on irrelevant material and/or made finding which were erroneous or mistaken.

18. As was highlighted in the Minister’s submissions, this ground, insofar as it might be viewed as a criticism of the Federal Magistrate’s decision, is dealt with by the Federal Magistrate at paragraph 26 of the reasons for judgment.  In the following paragraph of the Magistrate’s reasons, the Magistrate remarked:

    “The tribunal comprehensively went through each aspect of the applicant’s claims.”

19. There was no error in the Magistrate so viewing the way in which the Tribunal had gone about its task.  To read the Tribunal’s reasons for decision is to understand that the Tribunal fully considered on its merits the claim made by the Appellant for a protection visa.  I see no merit in ground 6. 

20. Ground 7 is that the decision of the Tribunal was affected by jurisdictional error in that the Tribunal did not take into account certain relevant consideration or “integers” central to the Applicant’s claim.  Ground 7 is also aptly described as generic.  Its focus is also on the Tribunal rather than, as it should be, on an alleged error on the part of the Federal Magistrate in dealing with the case. Even viewing ground 7 as an allegation that the Magistrate erred in not viewing the Tribunal’s decision in the way set out in that ground and at the risk of repeating observations I have earlier made, the Federal Magistrate was not in error in appreciating the nature of the challenge to the Tribunal decision and in holding that the Tribunal had dealt with the Appellant’s claims on its merits.  Ground 7 fails.

21. Ground 8 is likewise described aptly as generic.  It makes the bald allegation that the Tribunal failed to carry out its review function and to exercise its jurisdiction.  It also suffers from a vice of not engaging with an alleged error on the part of the Federal Magistrate.  Be that as it may, it adds nothing to ground 7 and it fails for the same reason. 

22. I should add that it is alleged, by way of particulars under ground 8, that the Tribunal did not consider the Applicant had been under:

    immense and intimidating pressure from RSS and VHP members because of his membership with the Student Muslim Movement.

23. Yet, it is apparent on reading the Tribunal’s reasons that it did consider that claim.  It is just that to the Appellant’s disappointment it did not accept the fullness of that claim.  Another particular advanced under ground 8 is that the Tribunal did not consider the Appellant’s claim that RSS members would kill him if he returned to India.  Again, though, reading the Tribunal’s reasons discloses that the consequences of a return to India were expressly considered by the Tribunal.  It is just that the Tribunal did not accept the fullness of the claim as made by the Appellant.  The role of accepting or rejecting a claim on its merits has been consigned by the Australian Parliament to the Refugee Review Tribunal, not the courts.

24. So even reading ground 8 in light of the particulars that are set out and perhaps charitably reading it as a ground of challenge to the Magistrate’s decision, there is no basis for success in ground 8. 

25. That leaves ground 9.  It is entitled “The Tribunal Applied The Wrong Test”.  The particulars under that ground are as follows:

    (a)the tribunal applied the wrong test by requiring independent evidence of the fact before the tribunal would accept a claim being made by the applicant for the tribunal was, in fact, placing a high onus of proof in the hearing and failing to give the applicant the benefit of the doubt.

26. The other particularised ground under paragraph 9 is :

    The tribunal left out individual elements of the applicant’s claims and tested whether they individually amounted to persecution rather than look at the claim as a whole to determine whether the claim so considered amounted to persecution.

27. As to the first of these particularised grounds under ground 9, and even assuming that it engages with the Magistrate’s decision, the Tribunal did not apply any wrong test in the assessment of whether or not the Appellant was entitled to a protection visa.  It did not place any onus of proof let alone a high onus of proof on him.  Instead, all that the Tribunal did, as the Federal Magistrate seems to have accepted, is to assess the claim fully and on its merits.  The second of the particularised grounds is, in a sense, at odds with a criticism made of the Tribunal before the Federal Magistrate, where the criticism was that the Tribunal had not looked at the claim as a whole.  Whatever may be the case, it is apparent that the Tribunal did look at the detail as well as the whole of the claim made by the Appellant for a protection visa based on his experiences in India, as he put them forward.  The Tribunal was not obliged to accept those claims unreservedly and uncritically.  As it happens, it did not accept all of the detail of the claim as to the Appellant’s experiences in India, but the role of deciding whether or not to accept the factual details of a claim is one that Parliament has given to the Tribunal.  It is the Tribunal not the courts that stands in the place of the Minister.  It follows that ground 9 as particularised fails. 

28. Having regard to the foregoing it also follows that the appeal on the grounds advanced in the notice of appeal must fail.  I therefore dismiss the appeal.

29. I add the following postscript.  It is apparent to me on looking at the grounds set out in the notice of appeal that certain of them have, at the very least, a similarity, if not an identity, with those which have been advanced in other earlier cases involving litigants from a similar ethnic group.  The Federal Magistrate, in the published reasons, made reference to this phenomenon and also, as I do, made no criticism of the Appellant for his seeking assistance in the putting forward of his case in the courts.  The Magistrate’s concern, and mine, are that persons in vulnerable circumstances not be exploited, and exploitation can occur when grounds which have no particular engagement with the circumstances of an individual’s case are circulated uncritically as having utility. 

30. I note further there is an elaborate regime in the Migration Act for the registration of migration agents and for the giving of immigration legal advice.  It would be in defiance of that elaborate regime if there were persons in the community who, for reward, circulated generic grounds to vulnerable members, and I should hope that the Executive Government will endeavour to counter any such activities.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:        6 March 2008

Counsel for the Applicant:	The Appellant appeared in person
Counsel for the Respondent:	Mr Shariff
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	4 March 2008
Date of Judgment:	4 March 2008