SZRAG v Minister for Immigration and Citizenship
[2013] FCA 202
•6 March 2013
FEDERAL COURT OF AUSTRALIA
SZRAG v Minister for Immigration and Citizenship [2013] FCA 202
Citation: SZRAG v Minister for Immigration and Citizenship [2013] FCA 202 Appeal from: SZRAG v Minister for Immigration and Citizenship [2012] FMCA 958 Parties: SZRAG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: ACD 69 of 2012 Judge: FOSTER J Date of judgment: 6 March 2013 Legislation: Migration Act 1958 (Cth), s 424A(3) Cases cited: SZRAG v Minister for Immigration and Citizenship [2012] FMCA 958 related
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; (2009) 259 ALR 429 cited
NAJT v Ministerfor Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 cited
SZQMC v Ministerfor Immigration and Citizenship (2012) 125 ALD 230 citedDate of hearing: 6 March 2013 Place: Canberra Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 27 Counsel for the Appellant: The Appellant appeared in person with the aid of an interpreter Solicitor for the First Respondent: Ms Jan Cumming of Clayton Utz Solicitor for the Second Respondent: The Second Respondent submitted save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 69 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZRAG
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
6 MARCH 2013
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 69 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZRAG
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FOSTER J
DATE:
6 MARCH 2013
PLACE:
CANBERRA
REASONS FOR JUDGMENT
This is an appeal from a decision of a Federal Magistrate delivered on 28 August 2012 (SZRAG v Minister for Immigration and Citizenship [2012] FMCA 958) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).
The appellant is a citizen of India who arrived in Australia on 25 November 2008 on a temporary business visa. On 15 March 2011, the appellant applied for a protection visa. A delegate of the first respondent (the Minister) made a decision on 10 June 2011 to refuse the appellant’s application for such a visa.
On 7 July 2011, the appellant applied to the Tribunal for a review of the delegate’s decision. The Tribunal affirmed the decision of the delegate on 9 December 2011.
BACKGROUND
The appellant claimed that he had been a member of the Dera Sacha Sauda (DSS) organisation since 1985. He claimed that he had worked closely with its guru Gurmeet Ram Raheem. He said that he had been an active member of the DSS and had occupied a managerial position with that organisation. He said that he had travelled to many countries with the guru in order to collect donations to the DSS. He claimed that, in 2007, the DSS was accused of insulting Sikhism and that many Sikhs carried out acts of violence against DSS followers. He claimed that he himself had never been attacked but knew that his name was on a list of persons who were to be attacked. He also claimed that he had received threats from the Sikh Youth Federation and also from the local police.
The appellant arrived in Australia on a business visa which had been arranged by the guru. He claimed that he was informed not to apply for another type of visa as it would mean that he would be sent back to India. He claimed that he only found out that he could apply for a protection visa from someone he met in a shop. I take it that these explanations were directed to the circumstance that the appellant had been in Australia for more than two years before he applied for a protection visa.
THE REVIEW IN THE TRIBUNAL
At the Tribunal hearing, the appellant was unable to give correct answers to the Tribunal’s questions about the DSS. He had little or no knowledge of who its leaders were, the location of its headquarters or of its three cardinal rules. As a result, the Tribunal was not satisfied as to the credibility of the appellant. The Tribunal did not accept that he and his family were adherents to the DSS. The Tribunal observed that the appellant’s claims about his relationship with the guru and his membership of the DSS were “notably vague and lacking in circumstantial detail”. The Tribunal was not satisfied that the claims were more than an invention.
At [54] of its Reasons for Decision, the Tribunal said:
The Applicant’s claims about his alleged membership of Dera Sacha Sauda and close relationship with Ram Rahim Singh are notably vague and lacking in circumstantial detail. They are unsubstantiated from any external source and consist of no more than a set of assertions. Taken together with the major inconsistencies which are evident between his claims and the information about Dera Sacha Sauda available to the Tribunal I am not satisfied that he was ever a member or employee of the organization or that he was ever a confidant of Ram Rahim Singh. I am not satisfied that these claims are more than an invention, informed by some vague knowledge of Dera Sacha Sauda which has possibly been gained from media reporting of controversies surrounding Ram Rahim Singh. I find that this also casts strong doubt over the credibility of the Applicant’s claims in general. Given that that the Applicant’s alleged membership of Dera Sacha Sauda and relationship with Ram Rahim Singh forms the basis for the harm he claims to fear, it follows that I am not satisfied there is a real chance that he would face serious harm from Sikh extremist groups, the Punjab government or police, members of Dera Sacha Sauda itself or anyone else in India. He does not claim to fear harm in India for any other reason and no other reason is apparent on the face of the information before the Tribunal.
Consequently, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.
THE PROCEEDING BEFORE THE FEDERAL MAGISTRATE
On 29 December 2011, the appellant filed an Application in the Federal Magistrates Court whereby he sought judicial review of the Tribunal’s decision.
The grounds of review advanced by the appellant before the Federal Magistrate were expressed as follows:
1.The Tribunal did not give to the applicant before the hearing the independent information that it had about Dera Sacha Sauda. The Tribunal used this information (RRT decision record page 11). This was against section 424A of the Migration Act 1958.
2.The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that the applicant claims were implausible, being conclusions that were not obviously open on the known material, without giving the Applicant the opportunity to be heard in respect of those matters.
3.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
The Federal Magistrate found that, in substance, the applicant was seeking impermissible merits review. He also observed that the Tribunal had made adverse credibility findings against the appellant. Those findings related to the core claims being advanced by the appellant.
The Federal Magistrate then addressed the three grounds of review relied upon by the appellant in his Application.
In respect of the first ground, his Honour held that the exception provided for in s 424A(3)(a) of the Migration Act 1958 (Cth) (the Act) applied to the information which had been utilised by the Tribunal in the present case. That subsection relevantly provided that subs (1) and subs (2A) did not apply to the type of information to which the Tribunal had regard in the present case (independent information concerning the DSS) because it was not information specifically addressing the circumstances of the appellant.
As far as the second ground was concerned, his Honour found that the appellant had been clearly informed of each matter that ultimately formed the basis for the Tribunal’s decision and had been given a fair opportunity to respond.
As far as the third ground was concerned, his Honour found it difficult to understand what was meant by the ground. His Honour concluded that the Tribunal did have jurisdiction to hear the matter and that the decision which had been reached was open to it on the evidence before it.
For these reasons, his Honour dismissed the application before him.
THE PROCEEDING IN THIS COURT
The appellant filed his Notice of Appeal in this Court on 11 September 2012. The grounds of appeal specified in that Notice of Appeal are as follows:
(1)The FM failed to consider that 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.
(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 the applicant claims, specially the grounds of persecution in India.
At the hearing before me this morning, the appellant did not seek to support the grounds of appeal relied upon by him in his Notice of Appeal by any submissions. Furthermore, he did not file any Written Submissions by which, in advance of the hearing, he endeavoured to support his grounds of appeal. When asked to make whatever submissions that he wished to make, the appellant informed me that he just wanted to stay in Australia for as long as possible because he feared what would happen to him if he returned to India. This remark made clear that the appellant was seeking to revisit in this Court the merits of his application which have now been considered on two occasions, once by the delegate and once by the Tribunal. This Court cannot engage in impermissible merits review.
As far as ground 1 in the appellant’s Notice of Appeal is concerned, this ground essentially repeats the third ground of review advanced before the Federal Magistrate. It is difficult to come to grips with the substance of the appellant’s complaint reflected in ground 1. The question of reasonable satisfaction was a matter which the Tribunal addressed by the whole of its Reasons for Decision. I must say that I have the same difficulty as the Federal Magistrate had with this ground which caused him, at [34]–[36] of his Reasons for Judgment, to say the following:
34.One of a number of unfortunate aspects of the application is that this particular ground is expressed at such a level of generality that it is not possible for either the Minister to address the specific grounds or for the Court to determine what is intended to be understood by this particular contention.
35.To the degree that the Court could perhaps only speculate what is intended by this ground of appeal, and to the degree that it is claimed that the Tribunal had no jurisdiction to make the said decision, that is a proposition I reject because the Tribunal clearly does have jurisdiction to deal with appeals from a delegate of the Minister.
36.And also, to the degree that the Court can glean what is understood by:
...reasonable satisfaction was not arrived at in accordance with the requirements of the Migration Act –
in my view, having regard to the evidence before it, the decision of the Tribunal is not attended by sufficient doubt to warrant this Court to intervene, or more accurately stated, the decision reached was open to it on the limited evidence available. That being so, for this Court to intervene would be to encroach upon the fact-finding exercise undertaken by the Tribunal. Such a course is not open.
I do not think that the appellant has established any error on the part of the Federal Magistrate or, indeed, any jurisdictional error on the part of the Tribunal of the kind which is perhaps embedded in ground 1.
Ground 2 contains two distinct propositions.
As far as the first element of ground 2 is concerned, this is simply an unparticularised assertion which has not been developed in any way. The Federal Magistrate came to grips with the grounds of review sought to be argued by the appellant in the Federal Magistrates Court as best he could and, in my judgment, more than adequately addressed the contentions as advanced by the appellant in that Court.
By the second part of ground 2, the appellant contended that the Tribunal was under an obligation to investigate the appellant’s claims, in particular, his claims to persecution in India. That ground was not argued before the Federal Magistrate. For it to be argued here now, the appellant requires the leave of this Court.
The Minister submitted that leave should not be granted because the ground has no reasonable prospect of success (as to which see NAJT v Ministerfor Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at 85 [166]; and also SZQMC v Ministerfor Immigration and Citizenship (2012) 125 ALD 230).
Although the Tribunal has power to conduct enquiries, it has no duty to do so except in exceptional circumstances. The appellant has not identified or specified what further enquiries or investigations he asserts should have been made by the Tribunal. There is, as the Minister submitted, no obvious enquiry about a critical fact, the existence of which is easily ascertained, that should have been made by the Tribunal (Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25]; (2009) 259 ALR 429 at 436 [25] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)).
I do not propose to give leave to the appellant to argue the second part of ground 2, that is to say that the Tribunal failed to investigate the appellant’s claims, because I do not think the ground has any prospect of success.
CONCLUSIONS
For all of the above reasons, the appellant’s appeal must be rejected. I propose to order that the appeal be dismissed with costs. The orders of the Court are:
(1)That the appeal be dismissed.
(2)That the appellant pay the first respondent’s costs of and incidental to the appeal.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.
Associate:
Dated: 8 March 2013
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