FEDERAL COURT OF AUSTRALIA

SZAMO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 943

MIGRATION – country information – claimed failure of Refugee Review Tribunal (RRT) to provide information to appellant – no information specified – no failure demonstrated – appeal dismissed

Federal Court of Australia Act 1976 (Cth) s 25(1A)

Migration Act 1958 (Cth) s 424A(1), 424(3)(a), 430A, 477(1A)

NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) ALR 494 cited

VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 cited

VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 134 cited

SZAMO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 2516 OF 2003

HELY J

13 JULY 2004

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed with costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Scarlett FM given on 26 November 2003.  By direction of the Chief Justice under section 25(1A) of the Federal Court of Australia Act 1976 (Cth) the appellate jurisdiction of the Court in relation to the appeal is to be exercised by a single Judge.

2                     The proceedings before Scarlett FM were an application for judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) affirming a decision by a delegate of the respondent not to grant a protection visa to the appellant.  The application made to Scarlett FM was itself made outside the time stipulated in s 477(1A) of the Migration Act 1958 (Cth) (‘the Migration Act’) and the respondent lodged an objection as to competency of that application on that account.  However, before that objection to competency could be determined, Scarlett FM first had to determine whether the RRT's decision was a privative clause decision.  This is because the time limits imposed by s 477(1A) only apply to decisions of that type.  Of course, if the RRT's decision was infected by a denial of natural justice it would not be a privative clause decision because it would not satisfy the description of a decision made under the Migration Act.  It was therefore necessary for Scarlett FM to attend to the substance of the appellant's claims and for him to make a decision on those claims notwithstanding the objection as to competency.  Scarlett FM followed this course, and hence approached the appellant’s application correctly.

3                     However, for some unexplained reason, Scarlett FM appears to have embarked upon a consideration as to whether there was a reasonable explanation for the delay in instituting the proceedings in the Federal Magistrates Court, whereas in the particular legislative context whether there was an explanation for the delay appears to me to have been an entirely irrelevant consideration.  In any event, the order which Scarlett FM made was an order upholding the objection as to competency and dismissing the application for review, but at least one of the grounds on which he did so was that the appellant had not shown that the RRT's decision was infected by any reviewable error.

4                     The notice of appeal raises only two grounds of appeal namely:

‘2.        The Federal Magistrate Court erred in failing to hold that the respondent had not complied with the provisions of section 424A(1) of the Migration Act.

3.         The Court erred in failing to hold that the respondent had not complied with the section 430A(1) of the Migration Act.’

5                     When the matter was called on for hearing this morning, the appellant appeared for himself without the benefit of legal assistance, and he was only able to address me through an interpreter.  I invited the appellant to put to me whatever he wished to put in support of his appeal but his only response was ‘I can’t say anything’, a response which I infer was due to an understandable inability on the part of the appellant to fashion legal arguments designed to show an error on the part of Scarlett FM and/or a jurisdictional error on the part of the RRT.

6                     Whilst I can understand the difficulties with which the appellant is confronted, his inability to articulate comprehensible grounds of appeal also create difficulties for the respondent and for the Court.  However, I am prepared to assume that ground 2 was intended to convey that the RRT had not complied with the provisions of s 424A(1) of the Migration Act and thereby deprived the appellant of natural justice, such that its decision was affected by jurisdictional error.

7                     Section 424A(1) obliges the RRT to provide to an applicant particulars of the information that the RRT considers would be the reason or part of the reason for affirming the decision under review.  Section 424A(3)(a) provides that:

‘The section does not apply … to information … that …  is just about a class of persons of which the applicant is a member.’

Although the notice of appeal raises this ground, no particulars are given as to the information which should have been furnished to the appellant pursuant to s 424A(1).  Scarlett FM dealt with this ground in pars 22 and 23 of his reasons for judgment, where his Honour said:

‘22.      In answer to a request to specify the documents that the applicant said were not shown to him, the Applicant said that when he appeared before the RRT he was told that the RRT had country information that said that the situation was good in the Punjab, not bad.  He said that he was asked if he could live in some other part of India, he said he told the Tribunal he would be killed.

23.       The Applicant reiterated that he had been denied natural justice but he was unable to specify how.’

8                     The effect of s 424A(3) has been considered in three recent Full Court decisions, namely NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) ALR 441; VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 and VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 134.  The judgments in those cases reveal some differences of judicial opinion as to the operation of s 424A(3).  Those differences, however, are not material to the disposition of the present appeal. 

9                     I have examined the decision of the RRT for the purposes of working out for myself what use the RRT made of country information in its possession in order to determine whether the RRT erred in dealing with that information.  In the section of the RRT’s reasons headed ‘Conflicts with independent information’ the RRT indicated that it relied upon country information in three respects, namely:

            (a)        as establishing that a person who was wanted by the authorities would find it difficult to depart from India (par 85).  This information was put to the appellant for comment at the hearing (par 32); and

       (b)        ordinary members of a legitimate political party such as Shiromani Akali Dal are not targeted for persecution by reason of that membership (par 87).  This information was put to the appellant for comment at the hearing (par 28); and

            (c)        ordinary members of All India Sikh Student Federation (‘AISSF’) are no longer targeted for reason of such membership (par 90).  This information is referred to in pars 37 and 39 of the RRT's reasons, but it is unclear whether those specific propositions were put to the appellant at the hearing before the RRT. 

10                  As I have said, the RRT also disclosed to the appellant that it had country information that said that the situation was good in the Punjab, not bad. 

11                  In my view, none of these matters was required to be disclosed to the appellant by reason of s 424A(3), and a failure to disclose them would not result in a denial of natural justice.  There could not, in any event, be a denial of natural justice in relation to the information referred to in pars (a) and (b) because that information was disclosed to the appellant at the hearing and he was specifically invited to comment on it.  The first ground of appeal therefore fails. 

12                  The second ground cites s 430A of the Migration Act.  Section 430A requires the RRT to invite the appellant to the handing down of its decision.  By letter dated 22 February 2002 an invitation to that effect was extended to the appellant.  There is no evidence to the contrary.  There is simply no basis on which I can find that the respondent has not complied with s 430A(1) of the Migration Act.

13                  In any event, a failure to comply with s 430A(1) would not amount to a jurisdictional error on the part of the RRT in making its decision.  The second ground of appeal is not made out. 

14                  The result is that the appeal must be dismissed with costs.

Associate:

Dated:              20 July 2004