FEDERAL COURT OF AUSTRALIA SZTXU v Minister for Immigration and Border Protection [2016] FCA 114 Appeal from: SZTXU v Minister for Immigration & Anor [2015] FCCA 3019 File number: NSD 1335 of 2015 Judge: PAGONE J Date of judgment: 17 February 2016 Catchwords: MIGRATION – appeal from Federal Circuit Court – Protection (Class XA) visa – no appealable error Legislation: Migration Act 1958 (Cth) ss 424A(1), 424A(3) Date of hearing: 17 February 2016 Date of publication of reasons: 18 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 8 Counsel for the Appellant: The appellant appeared in person assisted by an interpreter Counsel for the First Respondent: Ms N Blake of Clayton Utz Counsel for the Second Respondent: The second respondent filed a submitting notice ORDERS NSD 1335 of 2015 BETWEEN: SZTXU Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: PAGONE J DATE OF ORDER: 17 FEbruary 2016 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay costs to the first respondent in an amount not exceeding $4,400. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PAGONE J: 1 This is an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision which had been made by the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant the appellant a Protection (Class XA) visa. 2 The appellant is a national of the Republic of India who applied for a protection visa on 8 October 2012. The delegate refused the application on 8 February 2013. On 3 March 2013 the appellant applied to the Tribunal to review the delegate's decision. On 17 February 2014 the Tribunal affirmed the delegate's decision and on 17 March 2014 the appellant filed an application for judicial review of the Tribunal's decision to the Federal Circuit Court which on 19 October 2015 was dismissed by Judge Cameron. On 3 November 2015 the appellant commenced the appeal to this Court. 3 The notice of appeal to this Court raises no grounds of appeal. It states only that the appellant "appeals from the whole of the judgment and all of the orders of the Federal Circuit Court of Australia given on 19 October 2015 at Sydney". The notice of appeal goes on to say that no judgment was published and that the "appellant will particularise his appeal when a copy of the judgment is received". The notice of appeal, however, was accompanied by an affidavit made by the appellant but it contains no grounds of appeal. 4 An appeal to this Court is not a review of the merits but is confined to legal error shown by the appellant to have been made in the decision of the Federal Circuit Court. The appeal to the Federal Circuit Court from the Tribunal had raised four grounds for review, namely: 1. The Tribunal did not consider that I was persecuted for my religious belief though there are evidences to the Tribunal that there is some degree of discrimination against Sikhs in India and made errors of jurisdiction. 2. I have explained the reasons of my persecutions for my religious belief at the time of my interview. I also explained to the Tribunal that I was assaulted, discriminated and isolated daily from year 7 to year 12 for my religious belief. The Tribunal did not accept me as a credible witness and made errors of jurisdiction. 3. The Tribunal did not consider that I was a victim of systematic harassment as a member of a particular religious group. The Tribunal made errors of jurisdiction not considering the harm amounting to persecutions I experienced in India for my religious belief. 4. The Tribunal exceeded its jurisdiction or denied procedural fairness in that the Tribunal failed to put all adverse materials to me and enable me to have an opportunity to submit my explanations and material in reply to the alleged adverse material and made error of jurisdiction. His Honour considered each of these grounds in turn and found that they were not made out. 5 The first three grounds were directed to the conclusions reached by the Tribunal on the evidence before it. His Honour correctly found that the appellant's disagreement with the factual conclusions of the Tribunal did not establish jurisdictional error. His Honour said: The applicant's arguments as set out in the first three grounds of his application to this Court were directed to his disagreements with the Tribunal over conclusions it reached on the evidence. The applicant did not suggest that the Tribunal's findings were of a sort which no reasonable Tribunal would have reached and I am not of the view that there were. The fact that the Tribunal reached conclusions on the applicant's claims which the applicant alleged or implied were wrong in a factual sense does not demonstrate jurisdictional error on the Tribunal's part in circumstances where it is not apparent that any factual error which might have been made was so grave that it represented a legally erroneous approach to decision-making. The Tribunal had found that the appellant's claim to fear persecution as a member of a religious minority was not supported by independent country information which indicated that Sikhs were in the majority of the population in Punjab. The Tribunal had found that his evidence of being assaulted in 2006 was "inconsistent and unpersuasive". The claim had not been made by the appellant in his written statement which had been lodged with his protection visa application, and the Tribunal found that there were inconsistencies between his evidence at the departmental interview and at the Tribunal hearing. The appellant had claimed at the departmental interview that he was harassed every day that he went out and that his father went to the police to make a complaint, but at the Tribunal he had complained to have been attacked on the one occasion that he left the house which was not formally reported but that his father had mentioned it to police who were passing through. The Tribunal considered that the appellant had escalated the extent of his claimed injuries in response to the Tribunal's suggestion that it would have expected him to have suffered greater injury given the description he had given of the attack upon him. It also found his evidence that he was bullied on a daily basis in High School as "inconsistent and unpersuasive". None of these matters were shown to be wrong before the Federal Circuit Court and no error was shown to have been made by his Honour in rejecting the appellant's claim. 6 The only other ground which had been raised by the appellant at the Federal Circuit Court was the claim that the Tribunal had exceeded its jurisdiction or had denied him procedural fairness by the Tribunal having failed to put all adverse material to him to enable him to have an opportunity to submit his explanations and material in reply to the alleged adverse material. His Honour noted that this claim was unparticularised and that the appellant had not provided a responsive reply when asked at the hearing of the application at the Federal Circuit Court what materials had not been put to him which ought to have been put to him. His Honour went on to note that most of the information relied upon by the Tribunal in reaching its decision had been supplied in writing by the appellant himself or had been sourced by the Tribunal from independent third parties which, by virtue of s 424A(3) of the Migration Act 1958 (Cth), did not need to be given to the appellant under subsection 424A(1). His Honour said in his reasons: 9. In the fourth ground of his application the applicant said that the Tribunal had failed to put adverse material to him. This allegation was unparticularised and when asked at the hearing of this application what materials were not put to him but should have been, the applicant was unable to provide a responsive reply. I interpret the allegation to be one of a breach by the Tribunal of s.424A of the Act. The section relevantly provides: 424A Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. ... (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non-disclosable information. 10. Most of the information relied upon by the Tribunal in reaching its decision had been supplied in writing by the applicant himself or had been sourced by the Tribunal from independent third parties. By virtue of sub-s.424A(3) such information did not need to be given to the applicant under sub-s.424A(1). To the extent that the Tribunal relied on oral statements made by the applicant or on material in the departmental file, the Tribunal employed s.424AA of the Act to discharge its s.424A obligations, as it was entitled to do. Section 424AA relevantly provides: 424AA Information and invitation given orally by Tribunal while applicant appearing (1) If an applicant is appearing before the Tribunal because of an invitation under section 425: (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) if the Tribunal does so—the Tribunal must: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. 11. I am not persuaded that the Tribunal relied on material which it should have given to the applicant but which it failed to give to him. There is no error in his Honour's reasons or conclusion in respect of this ground. 7 His Honour also considered an additional ground which had been raised by the appellant which had not been in his formal application for review. The appellant had submitted at the hearing that the Tribunal "had not given proper consideration to his claims". In this matter his Honour found that the claims made by the appellant were relatively uncomplicated and the Tribunal's decision record made it perfectly clear that they had been taken into account but decided against him. 8 Accordingly, the appeal to this Court will be dismissed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate: Dated: 17 February 2016