FEDERAL COURT OF AUSTRALIA

SZCKV v Minister for Immigration and Multicultural Affairs [2006] FCA 455

MIGRATION – no point of principle

SZCKV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 2648 of 2005

MOORE J

27 APRIL 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.             The Refugee Review Tribunal be joined as second respondent in the proceedings.

2.             The appeal be dismissed.

3.             The appellant pay the first respondent's costs of the appeal.

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 judgment of a Federal Magistrate given ex tempore on 6 December 2005, although his Honour's reasons were not published until 13 December 2005: see SZCKV v Minister for Immigration & Anor [2005] FMCA 1808.  By the orders made on 6 December 2005, the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 23 December 2003.  The Tribunal had affirmed a decision of 14 February 2003 of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the appellant a protection visa. 

Background

2                     The following is a summary of the appellant's claims before the Tribunal and made in support of his application for a protection visa.  The appellant is a citizen of India and of the Muslim faith.  He claimed a well founded fear of persecution on the grounds of religion and political opinion, namely, that he was a Muslim (which were a minority in India) and a member of the Samajwadi Party ("SP"), which is a Muslim-based party. 

3                     The appellant claimed a fear of harm from the Bharatiya Janata Party ("BJP") and the Hindu nationalist organisations, the Rashtriya Swayamsevak Sangh ("RSS") and Vishwa Hindu Parishad ("VHP").  The appellant claimed those parties and organisations wanted to kill him because they mistakenly believed he had been involved in a terrorist attack on pilgrims at the Akshardham temple in the state of Gujarat in September 2002.  The appellant also claimed he was on the "hit list of extremists" of the BJP, RSS, VHP and the Shiv Sena because of his membership of the SP.  Further, the appellant claimed he and other members of the SP been beaten by extremist members of the BJP, RSS and VHP.  This had occurred while they were in Gujarat organising a relief camp. As a result, he had been hospitalised for almost a week.  He had been on the hit list since that time.  He had also received threats to his life, and had recently escaped an attempt on his life while in Bombay.  He claimed the authorities were not able to protect him as they were biased and did not support Muslims and that the nation was ruled by Hindu parties. 

The Tribunal's decision

4                     Although the appellant stated in his application for review to the Tribunal that a detailed submission would be filed later, no such submission was received.  By letter dated 22 August 2003, the Tribunal invited the appellant to attend a hearing before the Tribunal on 13 October 2003.  On 1 October 2003, the Tribunal received from the appellant a completed "Response to Hearing Invitation" form indicating the appellant did not want to attend the hearing and consenting to the Tribunal making its decision based on the material before it.  The Tribunal proceeded on the material before it to make its decision, which was unfavourable to the appellant.

The Federal Magistrate's judgment

5                     Three grounds were raised before the Federal Magistrate.  These were firstly, that the Tribunal erred in relying on media information, secondly, the Tribunal's decision was unjust and against the principles of natural justice, and thirdly, the Tribunal failed to properly interpret and apply the correct definition of a refugee. 

6                     The Federal Magistrate found that there was no substance to any of these grounds.  As to the first ground, his Honour found the Tribunal had not relied on media information but rather had relied on material provided by the appellant and was not satisfied on the basis of that material that the protection visa should be granted.  As to the second ground, the Federal Magistrate noted the appellant was invited to attend a hearing before the Tribunal, and that both the appellant and his authorised recipient had been informed by letter of that hearing invitation.  Further, the Tribunal had noted the authorised recipient had responded on behalf of the appellant, declining the invitation to attend.  The Tribunal had also advised the appellant by letter that it was unable to make a favourable decision on the material before it.  The Tribunal had not received any further submissions or evidence in support of the application.  In relation to the third ground, the Federal Magistrate concluded that the Tribunal had properly applied the definition of refugee.

7                     The Federal Magistrate went on to consider whether there was any breach of s 424A of the Migration Act 1958 (Cth) ("the Act").  His Honour noted that while the Tribunal referred to the claims made in the original application for a protection visa, the appellant had adopted those claims in writing for the purposes of the application for review before the Tribunal.  This adoption had arisen through the appellant's statement asking the Tribunal to refer to the departmental file, under the section "Your reasons for making this application" in the application form seeking review by the Tribunal. 

8                     His Honour concluded on that basis that the Tribunal had not been obliged to give notice under s 424A of any adverse material derived from the original application, and s 424A had not been breached.  As no jurisdictional error had been made out, his Honour dismissed the application.

The appeal and its disposition

9                     The notice of appeal filed 30 December 2005 identified three grounds which can be summarised as follows:

1.         The Federal Magistrate erred in finding that the Tribunal had not made an error of law;

2.         The Federal Magistrate erred in finding that the Tribunal did not deny natural justice; and

3.         The Federal Magistrate erred in failing to find that the Tribunal was biased and not interested in making its decision.

10                  The appellant's written submissions centred on the argument that the Tribunal had breached s 424A of the Act.  The appellant claimed that he had not been informed that the Tribunal would rely upon the information which he had provided in his original application for the purpose of rejecting his claim, and was not given an opportunity to provide any submissions on this information.

11                  The first respondent submitted that the Federal Magistrate should have held that the information it relied on from the appellant's original application did not form the reason or part of the reason for the Tribunal's decision, and therefore that s 424A of the Act did not apply.  Also, the appellant had plainly and expressly invited the Tribunal to refer to the documents held on his Departmental file, and by doing so, the information in his protection visa application was brought within the exception in s 424A(3)(b), namely that the appellant gave the information for the purpose of the application.

12                  The first respondent submitted that this Court should apply SZEZI v MIMIA [2005] FCA 1195.  In that case, the applicant failed to attend the hearing, and the only information which the Tribunal had before it came from the original application, Allsop J held that the reason for the decision was simply the evaluative conclusion founded on the perceived inadequacy of information, in the sense of the absence of detail and extrinsic explanation. 

The appeal and its disposition

13                  The issue of possible non-compliance with the provisions of s 424(A) appears to have been raised by his Honour.  His Honour, at [4], said as follows:

            "I have considered whether any breach of s. 424A of the Migration Act 1958 (Cth) ("the Migration Act") might be asserted in this case.  It is apparent that the RRT relied on the applicant's original protection visa claims in making its decision.  However, it is also tolerably clear that the applicant adopted those claims in writing for the purposes of his application to the RRT.  Page 46 of the court book contains a statement from the applicant inviting the RRT to refer to the departmental file which would have included his protection visa claims.  In these circumstances, the material put forward by the applicant in support of his original protection visa was adopted by him for the purposes of his review application to the RRT.  Therefore, the RRT was not obliged to give notice under s.424A of any adverse material derived from the protection visa application."

14                  I agree with these observations.  As noted earlier, the appellant did not appear before the Tribunal.  In his application for review when answering a question, "Please tell us why you consider yourself a refugee?" he wrote, "Please refer to above departmental file CLF2002/6362B. A detailed submission will be filed later."  No such submission was filed and the appellant did not appear at the hearing.

15                  The analysis undertaken by the Tribunal was based on the facts derived from the Departmental file to which the appellant had invited the Tribunal to have regard.  The effect of the appellant's invitation to the Tribunal was, in substance, the same as if he had resubmitted to the Tribunal the material that had been advanced in support of his original application for the protection visa.

16                  The appellant gave all information contained in the Departmental file to the Tribunal for the purpose of the application.  Accordingly, the contents of the Departmental file was information comprehended by the exception in s 424A(3)(b).  As indicated earlier, I agree with the Federal Magistrate's analysis.  No error attended his Honour's consideration of the issue raised in this appeal. 

17                  I order that the appeal be dismissed with costs, and also that the Tribunal be joined as second respondent.

Associate:

Dated:              31 May 2006