SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107 (22 February 2010)

Last Updated: 24 February 2010

FEDERAL COURT OF AUSTRALIA

SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107

Citation:	SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107
Appeal from:	SZNRZ v Minister for Immigration and Citizenship [2009] FMCA 1018
Parties:	SZNRZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR
File number:	NSD 1269 of 2009
Judge:	FLICK J
Date of judgment:	22 February 2010
Catchwords:	MIGRATION – importance of reasoning process – no appearance of Appellant – disadvantages in reproduction of reasoning and submissions of others – benefit of the doubt Held: Appeal dismissed
Legislation:	Migration Act 1958 (Cth)
Cases cited:	Gholami v Minister for Immigration and Multicultural Affairs [2001] FCA 1091, cited Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559, cited Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, 58 ALD 609, followed Nadezhkin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 128, cited Nguyen Do Vinh v Minister for Immigration and Ethnic Affairs (1997) 46 ALD 528, followed Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437, cited SZASL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1697, cited SZFPA v Minister for Immigration and Citizenship [2008] FCA 1220, cited SZKLO v Minister for Immigration and Citizenship [2008] FCA 735, 247 ALR 582, cited SZLQW v Minister for Immigration and Citizenship [2008] FCA 1279, cited SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816, cited SZNCW v Minister for Immigration and Citizenship [2009] FCA 818, followed SZMUV v Minister for Immigration and Citizenship [2009] FCA 205, cited SZNRZ v Minister for Immigration and Citizenship [2009] FMCA 1018, affirmed VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123, 206 ALR 471, cited VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, cited
Date of hearing:	10 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	25
The Appellant:	The Appellant did not appear
Counsel for the First Respondent:	Ms R Graycar
Solicitor for the First Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION	NSD 1269 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNRZ Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FLICK J
DATE OF ORDER:	22 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent fixed in the sum of $3,761.
   

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION	NSD 1269 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNRZ Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FLICK J
DATE:	22 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Appellant is a citizen of India.
2. He arrived in Australia on 7 July 2008 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) Visa on 11 August 2008. A delegate refused that application by letter dated 5 November 2008.
3. An Application for Review was lodged with the Refugee Review Tribunal on 1 December 2008. The Tribunal affirmed the decision under review by way of a decision dated 1 June 2009. The Tribunal rejected the now Appellant’s claims. It concluded that the now Appellant had “manufactured his evidence” in an identified respect and had given “inconsistent evidence” about other aspects of his evidence. It formed an “adverse view” as to his credibility. The Tribunal stated that the “totality of the applicant’s oral evidence shows a propensity to tailor his evidence in a manner which achieves his own purpose”. His refugee claims, it was held, were “completely unreliable”.
4. An application was then filed with the Federal Magistrates Court on 24 June 2009 and an amended application was later filed on 25 August 2009. That Court dismissed the application on 20 October 2009 and published its reasons for decision on 22 October 2009: SZNRZ v Minister for Immigration and Citizenship [2009] FMCA 1018. The reasons for that decision occupy some 10 pages. Of those 10 pages, the course pursued by the Federal Magistrate was to reproduce approximately five pages from the written submissions of the Minister and to reproduce over one page of the Tribunal’s reasons. The actual reasons for decision of the Federal Magistrate occupy some one to one and a half pages. The convenience of reproducing the reasoning and submissions of others may be readily understandable. However, such a course should not be encouraged.
5. A Notice of Appeal was filed in this Court on 10 November 2009.
6. The appropriateness of reproducing the work of others may in large part depend upon the circumstances of each individual case. But the repetition of the reasoning and submissions of others has many dangers. At the very least, it may create in the mind of a disappointed litigant the belief that independent judicial consideration has not been given to the legal and factual merits presented for resolution. It may also place in peril the discipline imposed upon a judicial officer of independently recording in writing reasons for decisions. An argument which may initially appear incontrovertible may become more uncertain of resolution as the process of writing reasons for any decision is undertaken.
7. The importance of independently recording reasons for decision is fundamental to the administration of justice. It is part of the means whereby judicial officers remain accountable. When writing extra-judicially, Kirby J has thus observed:

Unaccountable power is tyranny. If the exercise of power is accounted for, and is thought unlawful or unjust, it may be remedied. If it is hidden in silence, the chances of a brooding sense of injustice exists, which will contribute to undermining the integrity and legitimacy of the polity that permits it: [“Reasons for Judgment: ‘Always Permissible, Usually Desirable and Often Obligatory’” (1994) 12 Australian Bar Review 121 at 133].

The process of independently recording reasons is no less important in cases such as refugee claims where the safety of individuals is at stake. Without the reasons for decisions of the Federal Magistrates Court being adequately expressed, the appellate process is jeopardised since it cannot itself be properly discharged. No relevant jurisdiction is conferred upon this Court to itself review the decision of the Tribunal. That is the task entrusted by the Legislature to the Federal Magistrates Court. For this Court to proceed without the valuable benefit that reasons provide is, in effect, to deprive a litigant of both the benefit of a decision of a Federal Magistrate and the benefit of an appeal to this Court.

8. In some cases it may be apparent that a Federal Magistrate has carefully considered the application being advanced, notwithstanding a deficiency in the reasons provided: See, eg, SZFPA v Minister for Immigration and Citizenship [2008] FCA 1220 at [18] to [19]; SZMUV v Minister for Immigration and Citizenship [2009] FCA 205 at [9] to [25]. In other cases the inadequacy in the reasons provided may lead to an appeal being allowed: See, eg, SZKLO v Minister for Immigration and Citizenship [2008] FCA 735, 247 ALR 582.
9. The present appeal is an instance where such reasons as have been provided, albeit reasons which largely reproduce the submissions and reasons of others, do disclose the manner in which the Federal Magistrate proceeded.
10. The Notice of Appeal as filed in November 2009 states the sole Ground of Appeal (without alteration) as follows:

The Court below erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that:
Particular:

1. it failed to properly apply the consideration that applicant for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant claims are plausible, which was the case here.
   

11. The Appellant failed to appear before this Court when the appeal was called on for hearing. The Appellant had, however, been notified of both the date and time of the hearing.
12. Upon the non-appearance of the Appellant, an application was made by Counsel on behalf of the First Respondent to have the appeal dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). Rather than dismissing the appeal, it was considered that the more appropriate course was to proceed to hear the appeal in the absence of the Appellant. Such a course is permitted by O 52 r 38A(1)(d) of the Federal Court Rules. Rule 38A provides the following:

Absence of party
(1) If a party is absent when an appeal is called on for hearing, the Court may:

(a) order that the hearing not proceed unless the appeal is again set down for hearing or such other steps are taken as the Court directs; or
(b) adjourn the hearing; or
(d) proceed with the hearing, either generally or in relation to any claim for relief in the appeal.

(2) If the Court proceeds with the hearing under paragraph (1) (d), the Court may:

(a) set aside or vary any order made after so proceeding; and
(b) give directions for the further conduct of the appeal.

Adopting such a course at least ensures that the substance of the appeal has been addressed, albeit without the assistance of the appellant. It is a course which has previously been invoked in the hearing of migration appeals: See, eg, Nadezhkin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 128 at [19] to [20]; SZASL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1697 at [6]; VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [2], [2004] FCAFC 123; 206 ALR 471 at 472 per Finn and Stone JJ; SZLQW v Minister for Immigration and Citizenship [2008] FCA 1279 at [3] to [4].

13. Notwithstanding the deficiency in the manner in which the Federal Magistrate has recorded his reasons for decision, the appeal is to be dismissed.
14. The sole Ground of Appeal relied upon in this appeal suffers from a number of difficulties.
15. An initial difficulty is that it is not at all clear that the Ground as presently expressed was an argument advanced before the Federal Magistrate. So much is apparent from a comparison of the grounds as expressed in the Application as originally filed in the Federal Magistrates Court (or the Amended Application as later filed) and the Ground as expressed in the present Notice of Appeal. The cryptic manner in which the Federal Magistrate has expressed his reasons for decision does not provide much assistance. A new argument can, of course, be advanced on appeal where it is “expedient in the interests of justice to do so”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]. Kiefel, Weinberg and Stone JJ further observed at [48] that:

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. ...

In the present proceeding the position adopted by Counsel on behalf of the First Respondent was that the present Ground of Appeal had some “resonance” with the original Application and that the Federal Magistrate had resolved both the original Application and the Amended Application.

16. Counsel was content to proceed upon the basis that the Ground of Appeal as now formulated was open to be pursued on appeal. That is the manner in which the appeal proceeded. Counsel’s ultimate submission was that no appellable error is discernible in the decision of the Magistrate.
17. Concurrence is expressed with the course endorsed by Counsel on behalf of the First Respondent and her submissions that the appeal is without merit.
18. Difficulty emerges at the outset if reference is made to the Ground itself, and not to what purport to be Particulars. It may properly be characterised as a challenge to the facts as found by the Tribunal. The resolution of factual questions is a matter entrusted to the Tribunal alone: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, 58 ALD 609 at [67]; SZNCW v Minister for Immigration and Citizenship [2009] FCA 818 at [39]. Fact-finding, or reviewing the factual merits of a claim, is not the function of either the Federal Magistrates Court or this Court on appeal.
19. Alternatively, another difficulty emerges if reference is made to the purported Particulars. It is not correct to assert that a claimant is entitled to be given “the benefit of the doubt”. The Tribunal is not obliged to uncritically accept claims made by an applicant. It has thus been observed that “the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is “well founded” or that it is for reasons of political opinion”: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 596 per Kirby J. The Tribunal is entitled to subject the claims made by a claimant to “close analysis”: Nguyen Do Vinh v Minister for Immigration and Ethnic Affairs (1997) 46 ALD 528 at 533 per Goldberg J. But the difficulties confronting an applicant for refugee status have to be recognised: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451 (‘Randhawa’). Beaumont J there observed:

Proof of persecution in the context of an application for refugee status is a matter of some complexity. As A Grahl-Madsen has noted (The Status of Refugees in International Law at pp 145-146), in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for, since it is a well-known fact that a person who claims to be a refugee may have difficulties in proving his allegations (cf Gaudron J in Chan at 413); and it would go counter to the principle of good faith in the interpretation and application of treaties if a contracting state “should place on a suppliant a burden of proof which he, in the nature of things, could not possibly cope with”. This should not, however, lead to “an uncritical acceptance of any and all allegations made by suppliants”.

In discussing the burden of proof, the Handbook on Procedures and Criteria for Determining Refugee Status (1979) published by the Office of the United Nations High Commissioner for Refugees takes a similar position (at pp 47-49). Although limits on the use of the handbook in the interpretation of the treaty were indicated by Mason CJ in Chan (at 392), the Chief Justice went on to say (at 392) that he regarded the handbook “more as a practical guide for the use of those who are required to determine whether or not a person is a refugee”.

In that context, the handbook states:

“(2) Benefit of the doubt

203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to ‘prove’ every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.

204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.”

In assessing credibility, this Court has expressed the view that the Tribunal must be “sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims”: SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 at [25] per Middleton J. In Gholami v Minister for Immigration and Multicultural Affairs [2001] FCA 1091 at [7] Tamberlin J referred to Randhwa and “the liberal attitude concerning proof of persecution in the context of an application for refugee status” there espoused by Beaumont J.

20. For present purposes it may be accepted that in some circumstances it may be appropriate to extend to a claimant the “benefit of the doubt”. Left to one side is whether any such “benefit of the doubt” is consistent with the statutory requirement for a decision-maker to be “satisfied” of those matters set forth in s 65 of the 1958 Act.
21. But any such sensitivity as should be extended to those seeking to make out a claim for refugee status does not assist the present Appellant. Even to the limited extent that recourse may be had to the “benefit of the doubt” as expressed in the Handbook referred to by Beaumont J, the benefit only applies where the decision-maker “is satisfied as to the applicant’s general credibility”. That is simply not the present case. In the present case the Tribunal made findings of fact open to it on the evidence as to the now Appellant’s credibility. He was found by the Tribunal not to be a “witness of credit”.
22. The Ground of Appeal, however construed, is without merit.
23. The appeal is to be dismissed.
24. An order is sought pursuant to O 62 r 4(2)(c) of the Federal Court Rules that costs be fixed in the gross sum of $3,761. An Affidavit has been filed in support of that amount. Such an order should be made.

ORDERS

25. The Orders of the Court are:
    1. The appeal is dismissed.
    2. The Appellant is to pay the costs of the First Respondent fixed in the sum of $3,761.
       

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated: 22 February 2010