SZRSP v Minister for Immigration, Multicultural Affairs and Citizenship
[2013] FCA 849
•15 August 2013
FEDERAL COURT OF AUSTRALIA
SZRSP v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 849
Citation: SZRSP v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 849 Appeal from: Application for leave to appeal: SZRSP & Anor v Minister for Immigration & Anor [2013] FCCA 361 Parties: SZRSP and SZRSQ v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 884 of 2013 Judge: JACOBSON J Date of judgment: 15 August 2013 Catchwords: MIGRATION – application for leave to appeal from Federal Circuit Court – protection visa – where adverse credibility findings were made by the Refugee Review Tribunal – whether the primary judge acted in a “manifestly unreasonable” way – no reviewable error made in Court below – application dismissed with costs Legislation: Federal Circuit Court Rules 2001 (Cth)
Federal Court of Australia Act 1976 (Cth)
Migration Act 1958 (Cth)Cases cited: Minister for Immigration and Citizenship v Li (2012) 297 ALR 225
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152Date of hearing: 15 August 2013 Date of last submissions: 15 August 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 39 Counsel for the First Applicant: The First Applicant appeared in person Counsel for the Second Applicant: The Second Applicant did not appear Solicitor for the First Respondent: Mr R Baird of Clayton Utz Counsel for the Second Respondent: Filed a Submitting Notice on 23 May 2013
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 884 of 2013
BETWEEN: SZRSP
First ApplicantSZRSQ
Second ApplicantAND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JACOBSON J
DATE OF ORDER:
15 AUGUST 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The name of the first respondent in the application for leave to appeal filed 21 May 2013 be amended from “Minister for Immigration and Citizenship” to “Minister for Immigration, Multicultural Affairs and Citizenship”.
2.The application be dismissed.
3.The applicants pay the first respondent’s costs of the application.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 884 of 2013
BETWEEN: SZRSP
First ApplicantSZRSQ
Second ApplicantAND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JACOBSON J
DATE:
15 AUGUST 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This is an application for leave to appeal from orders made by Federal Circuit Court Judge Nicholls on 10 May 2013.
His Honour made orders, including an order that an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
That rule provides that at the hearing of an application for an order to show cause, the court may, if it is not satisfied that the application has raised an arguable case for the relief claimed, dismiss the application. Rule 44.12(2) states that to avoid doubt, a dismissal under para (1)(a) of that rule is interlocutory.
It follows by reason of the provisions of s 24(1)A of the Federal Court of Australia Act 1976 (Cth), that an appeal is not to be brought from the orders made by the Federal Circuit Court judge unless this Court gives leave to appeal.
The principles upon which leave to appeal will be granted are well-established. They are that leave will be granted where there is a reasonably arguable case that the decision below is affected by appealable error and a grant of leave is necessary to remedy a substantial injustice.
The only real issue which arises in the present application is whether the applicant has demonstrated a reasonably arguable case of appealable error in relation to what is said to be the failure of the Tribunal to adjourn the hearing in order to permit the applicant to obtain documentary evidence from India.
THE PROCEDURAL HISTORY
The issue which I have mentioned necessitates a brief narration of the chronology of events in relation to this proceeding. There are two applicants in the proceeding, who are citizens of India and who applied for Protection (Class XA) visas in August 2011.
A delegate of the Minister refused to grant the protection visas on 6 December 2011. Prior to the delegate’s decision, the Department wrote to the applicants in response to their application for a protection visa. The letter was written on 29 August 2011. The letter acknowledged receipt of the application and it was followed up by further correspondence, including a letter dated 8 November 2011. That letter invited the applicants to attend an interview before the delegate to be held on 23 November 2011. The letter included a statement, under the heading, “What to Bring to the Interview” that the applicants should bring any supporting documents regarding their claims.
A full statement of what took place at the interview is set out in the Tribunal’s reasons for decision at [26]. The interview was evidently fairly lengthy. The male applicant was interviewed but it appears that his wife, who was the second named applicant, did not take part in the interview.
The husband was asked about an issue which was raised by the delegate and the husband replied that he had no documentation in relation to that question because he had problems with his family since his marriage some four years earlier. He said that he had all his documents at his home in India and that he may be able to provide the Department with the documents.
The delegate indicated that he would wait seven days for the documents but no documents were received by the delegate prior to the date on which the delegate’s decision was made, that is to say, 6 December 2011.
On 23 December 2011, the applicants applied to the Tribunal for a review of the decision of the delegate. The Tribunal acknowledged the application by letter of the same date, that is to say 23 December 2011. The letter included a statement that if the applicants wished to provide material for the Tribunal to consider, they should do so as soon as possible. By letter dated 7 March 2012, the Tribunal invited the applicants to attend a hearing before the Tribunal to give evidence and present arguments relating to the issues arising in their case.
The letter included a statement to the effect that if the applicants had any new information which they wished the Tribunal to consider, they should send the documents to the Tribunal and the documents should be in English or be translated. The hearing took place on 17 May 2012 in accordance with the invitation. The husband attended but his wife did not.
The Tribunal’s reasons for decision at [38] record that the Tribunal asked the applicant if he had documents relating to his membership of the BJP. I should point out here that the claim which the applicants made under the Convention to have a well-founded fear of persecution rested upon their statement that they feared persecution by reason of their involvement with the BJP. Their claim for protection was therefore one of a well-founded fear of persecution on political grounds.
The Tribunal’s reasons at [38] record that the Tribunal asked the applicant if he had the documents to submit as evidence. The applicant said he didn’t have them with him. He said that he left them at his parents’ home in India. He said he did not discuss the matter with his parents, and did not know what they thought about it.
Following the hearing before the Tribunal attended by the applicant, the Tribunal wrote to both applicants on 23 May 2012 pursuant to s 424A of the Act, to invite their comments or response to information which the Tribunal considered would, subject to their response, be the reason or part of the reason for affirming the decision of the delegate. The applicants did not respond to that letter.
The decision of Tribunal was made on 25 July 2012, approximately two months after the date of the letter to which I have referred. The substance of the Tribunal’s reasons may be found commencing at [74].
The Tribunal found at [74] that the applicant had given inconsistent evidence about his involvement with the BJP. It concluded that the Tribunal did not accept that the applicant had given truthful evidence about his involvement with the BJP and considered that this reflected adversely upon his credibility. The Tribunal set out in some detail at [74] its reasons for reaching that view. The Tribunal gave a number of other reasons which affected the credibility of the applicant’s case. It is unnecessary to set out those reasons. They are stated in full at [70] to [80] of the Tribunal’s reasons. The Tribunal said at [81] that the combination of the matters led the Tribunal to find that the applicant had been untruthful in his evidence about the events in India, his reasons for leaving India, and his fears about returning to India.
THE COURT BELOW
The Federal Circuit Court judge was satisfied that the matters raised by the applicant did not reveal an arguable case for relief. His Honour referred amongst other things to the question of the opportunity accorded to the applicant to put before the court evidence in support of his application.
His Honour recorded at [30] the Tribunal’s account of what occurred at the hearing as set out in [38]. I have referred to that paragraph of the Tribunal’s reasons earlier in today’s reasons for judgment. Importantly at [31], his Honour said:
…I note there is nothing in the Tribunal’s decision record to even suggest, let alone support, the applicant’s claim today that he told the Tribunal that he wanted more time to obtain these documents. This complaint also does not raise an arguable case for the relief sought.
It is unnecessary to refer to the other matters raised in the application. The grounds are recorded at [22] of the judge’s reasons for decision.
The first ground was said to be a failure to comply with s 424A of the Act. The second was said to be that the Tribunal failed to consider “an integer” of the claim in failing to consider whether or not a member of a political party in India was at risk of harm from an opposition party and not able to access effective protection.
It is sufficient to say that the ground sought to be raised under s 424A was dismissed, having regard to well-established principles and authorities which were fully set out in the Federal Circuit Court judge’s reasons at [35] and [36].
The ground asserting failure to consider an integer of the claim was also dismissed because as the judge observed at [40], once the Tribunal had made a finding that the applicant was not a member of the BJP at risk from any opposition party, the Tribunal was not required to address the question of effective state protection.
THE PRESENT APPEAL
The draft notice of appeal upon which the applicant relies contains two grounds of appeal.
The first is that the judge failed to consider that the Tribunal acted in “a manifestly unreasonable way” in dealing with the applicant’s claims, and ignoring the aspect of persecution and harm, pursuant to s 91R of the Migration Act 1958 (Cth).
The second is that the judge failed to consider that the Tribunal “had no jurisdiction to make the decision” because its reasonable satisfaction was not arrived at in accordance with the requirements of the Act.
The first proposed ground of appeal does not arise for the reasons referred to by the primary judge.
The second is linked to the first ground, and equally cannot succeed. The question of whether the decision of the Tribunal was unreasonable by reason of what is said to be the failure to grant an adjournment cannot succeed. This in my view is plainly established both by reference to the chronology of events described above and also by reference to the principles stated in the authorities to which Mr Baird has referred this afternoon.
It is plain from the chronology of events that preceded the decision of the Tribunal that the applicant must have been aware at the hearing on 17 May 2012 that if he wished to provide documentary evidence it was necessary for him to have the documents available.
Moreover, as the primary judge observed at [31] of his reasons, it is plain that the applicant did not request an adjournment at the hearing before the Tribunal on 17 May 2012. This is also borne out as I have pointed out by what appeared at [38] of the Tribunal’s reasons.
THE RELEVANT AUTHORITIES
The authorities establish that the proceeding before the Tribunal is not adversarial but inquisitorial in character. It is for an applicant for a protection visa to establish the claims that are made: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [40].
It was therefore incumbent upon the applicant to provide whatever documentary evidence he wished to rely upon when he attended the hearing. It may be accepted that the Tribunal had a discretion, if the occasion arose, to grant an adjournment to the applicant however no such application was made in the present case.
As the High Court observed in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [41] the Tribunal was entitled to decide the case on the material before it and if the material were insufficient to satisfy it the applicant was entitled to the grant of a protection visa, it was required to affirm the delegate’s decision. The observations made by the High Court in that case apply equally here.
It may be accepted, as the High Court recently reiterated in Minister for Immigration and Citizenship v Li (2012) 297 ALR 225 at [86] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J), that a power reposed upon the Tribunal must be exercised reasonably.
However, the decision in Li is distinguishable from the present case. There the Court dismissed an appeal from a decision of the Full Court of the Federal Court which had held that a refusal by the Migration Review Tribunal to grant an adjournment was unreasonable. This was because the refusal amounted to a failure by that Tribunal to discharge its core statutory function of reviewing the decision.
So much is plain from the decision from the reasons for judgment of French CJ at [22] and [31] as well as from the reasons of the other justices. The case has no application here not least because in the present case, no request for an adjournment was made.
It seems to me to follow that no arguable case of jurisdictional error has been demonstrated. Accordingly no question of injustice arises.
CONCLUSION
I therefore propose to refuse the grant of leave to appeal from the decision of the Federal Circuit Court judge. Costs must follow the event and the applicant must be ordered to pay the costs of this application.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate:
Dated: 15 August 2013
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