FEDERAL COURT OF AUSTRALIA

SZCJR v Minister for Immigration and Multicultural Affairs [2006] FCA 1083

MIGRATION – appeal against decision of a Federal Magistrate – no point of principle

Held: Appeal dismissed

Migration Act 1958 (Cth) s 426A

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 cited

SZCJR & Ors v Minister for Immigration & Anor (No 2) [2006] FMCA 640 cited

VWBF v Minister for Immigration and Multicultural Affairs (2006) FCA 851 cited

SZCJR, SZCJS AND SZCJT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 727 OF 2006

COLLIER J

18 AUGUST 2006

BRISBANE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the costs of the first respondent fixed at the sum of $3000.

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

REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of Raphael FM of 10 April 2006, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made 18 November 2003 and handed down on 11 December 2003. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) made on 6 June 2003 to refuse to grant a protection visa to the appellants.

2                     The appellants are a husband, wife and daughter. They are citizens of India. They arrived in Australia on 29 January 2003 and applied for a protection visa on 19 February 2003. They applied to the Tribunal for a review of the decision of the Minister’s delegate on 30 June 2003. The appellants rely on the claims of the appellant husband. In his protection visa application and before the Tribunal the appellant husband claimed to fear persecution because of his religion and politics. He claimed that as a Muslim living in Mumbai who was affiliated with the Samajwadi political party, he was attacked by Hindu extremists. The appellant husband claimed that he received threats from extremists, his business was looted and burnt, his family home was ransacked, and his family members sustained injuries and required hospitalisation. He claimed that he was living under the tension of consistent life-threatening circumstances, and the fear of persecution.

The Tribunal’s decision

3                     The appellants did not attend a hearing before the Tribunal, and the Tribunal proceeded on the basis of the information before it in the Department’s file, including the protection visa application and the delegate’s decision record. The Tribunal also had regard to a substantial amount of independent evidence as to the situation in India. The Tribunal found that this indicated that there is religious freedom in India and that state and federal governments generally take vigorous and active steps to put an end to communal violence. However, it also noted that religious tensions do arise in India and there is evidence of sporadic religious-based communal violence.

4                     The Tribunal found that without further evidence it could not be satisfied of the appellants’ claims and therefore was not satisfied that the appellants had a well founded fear of persecution within the meaning of the Refugees Convention.

Decision of the Federal Magistrate

5                     On 5 January 2004 the appellants filed an application for review of the decision of the Tribunal. The appellant husband maintained his claim to be ‘refugee’ within the definition in the Refugees Convention. Before the Federal Magistrate the appellants claimed that the Tribunal:

·         made a decision that involved an error of law

·         did not take into account all the relevant facts on the record before making its decision

·         made its decision mainly based on media information rather than on personal circumstances and claims

·         did not follow the procedures as required by the Migration Act 1958 (Cth) (‘the Act’).

6                     Raphael FM found that there was no jurisdictional error in the way in which the Tribunal formulated its decision. His Honour at par 7 (SZCJR & Ors v Minister for Immigration & Anor (No 2) [2006] FMCA 640) found that the Tribunal’s decision in this case was simply one of failure of satisfaction due to the lack of detail in the appellants’ submissions.

The appeal to this court

7                     The appellants sought to appeal to this Court by way of unparticularised notice of appeal filed by the appellants on 18 April 2006. The notice of appeal stated that the Federal Magistrate’s reasons for judgment had not yet been received by the appellant and that grounds would be provided once the judgment was received. The notice of appeal was accepted for filing by the New South Wales Registry of the Federal Court.

8                     On 27 July 2006 the Registry contacted the appellants and advised them that grounds of appeal had not been received for filing. The appellants filed a document on 28 July 2006 which outlined their grounds and particulars of appeal. This document was also accepted by the Court. The appellants’ grounds of appeal were, inter alia:

·         the Tribunal failed to provide the appellants with notice of the adverse information which was used to make the decision to reject the application

·         the Tribunal failed to provided the appellants with an opportunity to comment on the country information on India which was used to make the decision to reject the application

·         the Tribunal did not provide the appellants with an opportunity to comment on the inconsistencies between the information in the Department’s decision and the Tribunal’s decision

·         there was a denial of natural justice.

9                     At the hearing, the appellants submitted that the Tribunal decided their case on the basis of general country information and not based on their personal circumstances. The appellants further submitted that it is not possible for them, and their additional Australian-born child, to return to India. Their family still suffers from threats and violence and it is not safe for the children.

10                  The first respondent filed written submissions on 20 July 2006. In light of the fact that these submissions were filed prior to the appellants stating and particularising their grounds of appeal, I sought the views of counsel for the first respondent as to whether the first respondent had in fact had an opportunity to respond to the appellants’ grounds of appeal filed 28 July 2006. Counsel indicated that he would rely on written submissions already filed, and oral submissions. The submissions of the first respondent were, inter alia, that:

·         the Tribunal was entirely correct to affirm the delegate’s decision because it was clear that from a consideration of the material before it the delegate and the Tribunal were unable to make a favourable decision to the appellant

·         the legislative regime requires a positive state of satisfaction as to whether protection obligations are owed and mandates a refusal if that state of satisfaction is not reached

·         it was clear that the appellants wished the Tribunal to have regard to and decide their application on the basis of the claims made to the Department and therefore no s 424A error existed. In particular, the appellants cannot complain that the Tribunal took into account information provided by the appellants to the Department, when the appellants specifically provided the protection visa application of the appellant husband and his letter containing his claims to the Tribunal as information upon which to determine their application for review. In this sense, the information fell within s 424A(3)(b) of the Act.

11                  I understand that the adverse information which the appellants say the Tribunal failed to provide to them in contravention of s 424A(1) of the Act, and which was used to make the decision to reject the application, was information which the appellants provided to the Department when the decision to refuse the visas was made. However, as the first respondent submitted, this information was also provided by the appellants to the Tribunal. This was not disputed by the appellants. As pointed out by Heerey J in VWBF v Minister for Immigration and Multicultural Affairs (2006) FCA 851 at pars  49 and 50:

‘Likewise, if an applicant says to the Tribunal “What I said in my visa application is true” and that application contains fact X, the normal meaning conveyed would be that the applicant is giving the information constituted by fact X to the Tribunal, as well as the further fact that fact X had been asserted by the applicant when he made the visa application.

Such a reading of s 424A(1) and (3)(b) would be consistent with common law concepts of natural justice which require the decision-maker to give the person affected notice of relevant information obtained from another source but not, generally speaking, to invite comment on the evaluation of material submitted by the person himself: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 and the cases there cited.’

12                  In my view, these comments apply directly to the information provided by the appellants to the Tribunal.

13                  Further, the appellants have complained that the Tribunal failed to provide the appellants with an opportunity to comment on country information, and inconsistencies between the information in the Department’s decision and the Tribunal’s decision. They claim that there has been a denial of natural justice. The answer to this is clear – in its letter of 29 September 2003, the Tribunal invited the appellants to give oral evidence and to present arguments in support of their written submissions. The appellants were provided with an opportunity to comment on any issues at the hearing held on 18 November 2003. They chose not to avail themselves of that opportunity. The Act specifically permits the Tribunal to make a decision on the review should the parties fail to appear at the hearing: s 426A.

14                  From the decision record of the Tribunal, it appears that the Tribunal carefully considered such information as was before it. Although the appellants claim that the Tribunal did not consider their personal circumstances in reaching its decision, the Tribunal, to the extent possible on such information as was before it, had regard to the claims and evidence provided by the appellant husband. In the circumstances, findings of fact by the Tribunal, and reasonable conclusions based on those findings of fact, are not reviewable by this Court. In my view, no grounds have been submitted which would justify overturning the decision of Raphael FM.

ORDERS

1.                  The appeal be dismissed.

2.                  The appellants pay the costs of the first respondent fixed at the sum of $3000.

Associate:

Dated: 18 August 2006