FEDERAL COURT OF AUSTRALIA

SZCVD v Minister for Immigration & Multicultural Affairs

[2006] FCA 1456

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

NSD 988OF 2006

CONTI J

8 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent.

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 the judgment of Federal Magistrate Driver, given on 4 May 2006, which dismissed an application for judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 4 February 2004. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (as then designated), made on 19 August 2003, to refuse the grant of a protection visa to the appellant.

The Tribunal’s decision

2                     The appellant is a citizen of India. Before the Tribunal the appellant claimed to fear persecution upon the basis of his political activities as a joint secretary of the Trinamool Congress Party (‘TMC’). The Tribunal observed that the appellant had outlined in his protection visa application that he had campaigned for a successful TMC candidate in the state elections, but the opposing Communist Party of India (Marxist) (‘CPIM’) won government in West Bengal. The appellant claimed that he subsequently became the target of CPIM ‘hoodlums’ attention, and that he was beaten up and threatened by members of the CPIM in 2002.

3                     The Tribunal found the appellant’s evidence regarding his employment, finances and previous overseas travel to be ‘hesitant, vague and incomplete’ and observed that the appellant’s ‘reluctance to be drawn on these matters was aimed at highlighting his political activities and [to] bolster his case for refugee status’. The Tribunal further found that the appellant’s evidence on political matters was expressed in merely ‘general terms’ and the Tribunal did not accord weight to the purported TMC letter submitted by the appellant in support of his contentions regarding his political activities, as it considered that the contents and format of, and errors in, the document raised doubts about its genuineness.

4                     The Tribunal accepted the appellant’s assertions of his executive positions in TMC committees, but due to the lack of documentation, the Tribunal found the asserted roles were informal titles which did not denote political profile or influence. The Tribunal accepted the appellant was ‘involved in internal party organisation and logistic support’, was known in his district and nearby towns, and was known to some local counterparts in the CPIM. However, the Tribunal did not accept the appellant’s claim that his personal campaigning efforts were ‘so successful as to attract the more sustained adverse attention of CPIM supporters’.

5                     In relation to the appellant’s testimony concerning fear of persecution in the reasonably foreseeable future, the Tribunal found it did not have material to support any such conclusion. The Tribunal also found that the evidence provided by the appellant merely reinforced the argument that the appellant’s interest in politics was relatively low-key. With respect to the claimed incidents that supposedly occurred following the 2001 State elections, the Tribunal accepted that the appellant was confronted and threatened on several occasions, but found that even though there was a political component to these confrontations, ‘there must also have been some personal or local factors which were the essential and significant reasons for this action’. Furthermore, the Tribunal found that those incidents did not occasion serious harm within the meaning of s 91R of the Migration Act 1958 (Cth) (‘the Act’).

6                     The Tribunal accepted that the appellant was beaten in 2002, but due to the lack of public reporting and the appellant’s political activity and appearance as a ‘well-to-do local’, the Tribunal was not satisfied that the attack was essentially due to the appellant’s political opinion. The Tribunal found no reliable country information on the nature of political violence in the appellant’s home district. The Tribunal also found the appellant could avail himself of adequate and effective state protection and that relocation was possible. Ultimately, the Tribunal was not satisfied the appellant fulfilled the criterion for the grant of a protection visa set out in s 36(2) of the Act and consequently affirmed the decision not to grant the protection visa sought.

The Federal Magistrate’s decision below

7                     In the proceedings before Federal Magistrate Driver, the appellant claimed that the Tribunal denied him procedural fairness by not providing him with an opportunity to comment on the authenticity of his documents. In support of that application, the appellant also filed written submissions on 19 April 2006, which, inter alia, raised the additional grounds: that the Tribunal committed jurisdictional error by failing to consider the appellant’s well-founded fear of persecution; the Tribunal breached s 424A of the Act; and the Tribunal failed to allow the appellant an opportunity to give evidence in accordance with s 425 of the Act.

8                     The Federal Magistrate considered the procedural fairness claim, but found that the decision was subject to the operation of s 422B of the Act and consequently the appellant’s allegation could only be considered by reference to the procedural requirements of Part 7, Division 4 of the Act. His Honour further found that the purported TMC letter considered by the Tribunal fell within the exception created under s 424A(3)(b) of the Act as it was ‘information which forms part of the application to the [Tribunal]’. Even if there was an obligation under general law here in operation concerning the provision of natural justice, the Federal Magistrate applied the Full Federal Court decision of WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [54] and found no obligation on the Tribunal to disclose its concerns about a document which appeared to be fraudulent on its face.

9                     Moreover the Federal Magistrate found no substance to the allegation of a breach of s 425 of the Act, since the appellant was properly invited to the hearing and accepted that invitation. His Honour also observed that ‘the [appellant’s] written submissions also take issue with the reasoning of the RRT, but that is no more than a contest over the merits of the RRT decision’.

10                  The Federal Magistrate considered the ground raised pursuant to s 424A of the Act and found at [8]: -

“The rejection of the applicant’s protection visa claim of serious physical harm is likely to have been part of the reason for affirming the decision of the delegate. I conclude that this is a borderline case of disclosure being required pursuant to s.424A of the Migration Act. It does not follow, however, that the applicant is entitled to relief”.

However, Driver FM went on to observe that the Minister made an alternative submission that the Tribunal’s decision could be supported on alternative bases of reasoning. His Honour was persuaded by the Minister’s submission that there were two independent bases not adversely affected by any purported breach of s 424A(1) of the Act: namely, effective state protection and relocation. Reference was made in that context to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [232]-[233] (Allsop J).Consequently, the Federal Magistrate dismissed the application.

The appeal to the Federal Court

11                  The notice of appeal to the Federal Court, filed by the appellant on 22 May 2006, contained nine paragraphs of what can be described as vaguely formulated grounds of appeal. Several particulars of error, with the exception of the challenge to the relocation finding, were provided on the basis of breach of procedural fairness or jurisdictional error. The grounds of appeal included, inter alia, assertions that the Federal Magistrate erred by: failing to find a lack of procedural fairness as the Tribunal allegedly did not give the appellant a reasonable opportunity to explain inconsistencies in the evidence and to respond to country information; not finding that the Tribunal failed to consider or deal ‘in any substantive way’ with the outstanding charges the appellant faced on his return to India and the ‘persecution the appellant [allegedly] faced as a result of these charges and his political beliefs’; not finding that the Tribunal failed to consider ‘all the materials…readily available and/or accessible’; failing ‘to address [the appellant’s] mind to the material questions arising out of those materials’; and not concluding that the Tribunal erred in its relocation findings.

12                  The Minister submitted rightly that the Tribunal did not rely on any external ‘information’ regarding document forgery in relation to its finding not to accord weight to a letter submitted by the appellant in support of his application for review. The Minister further submitted, also correctly in my view, that there was no breach of s 424A(1) arising out of the way the Tribunal dealt with the letter, because ‘in accordance with section 424A and the principles stated in [SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162], the letter is not ‘information’ which has to be notified to the applicant under section 424A(1)….[as] it is information which forms part of the application to the Tribunal…’.

13                  I find no error in Federal Magistrate Driver’s findings in relation to procedural fairness and the operation of s 422B of the Act in the context of this case. Nor do I find any error in his Honour’s findings in relation to s 425 of the Act, as I am satisfied that the applicant was properly invited to the hearing, he attended that hearing and his claims were sufficiently addressed by the Tribunal member.

14                  In relation to the appellant’s contention that the Tribunal failed to put inconsistencies in the appellant’s evidence to the appellant for comment, the Minister submitted that although ‘this is not put [by the appellant] as a breach of s 424A of [the Act], it is appropriate that this particular be considered in light of that section’. Federal Magistrate Driver observed that the Tribunal drew attention ‘to what it saw as an inconsistency between a claim of physical harm and hospitalisation made in support of the applicant’s protection visa application and what the applicant said about that issue at the [Tribunal] hearing’. His Honour went on to observe that ‘[t]he rejection of the applicant’s protection visa claim of serious harm is likely to have been part of the reason for affirming the decision of the delegate’, but concluded that whilst ‘this is a borderline case of disclosure being required pursuant to s 424A’ of the Act, ‘[i]t does not follow, however, that the applicant is entitled to relief’.

15                  I find force in the Minister’s submission, and also in the Federal Magistrate’s finding, that even if a breach of s 424A did occur, there are two independent bases on which the Tribunal’s decision may be upheld, being the relocation and state protection findings. In relation to the finding on state protection, the Tribunal observed at page 102 of the court book, as follows:

‘[t]he Tribunal recognises that the resources and organisational constraints under which the police operate mean that ‘absolute’ protection cannot be provided. It is, however, satisfied that the Applicant particularly in view of his and his family’s social and economic standing, can avail himself of adequate and effective State protection from harm from the CPIM or others’

In relation to the issue of relocation, the Tribunal observed at page 203 of the court book that:

‘[t]he Applicant’s age, his language skills (Bengali, with reasonable knowledge of English, and his evident ability to make himself understood in Mumbai, Malaysia and Japan), travel experience within India and overseas, and access to family financial resources make it reasonable for him to avail himself of national protection elsewhere in India should the need arise’.

16                  Consistent with the principles accepted by a Full Federal Court in SZEEU at [232]-[233], I conclude that the Federal Magistrate did not err in affirming the decision of the Tribunal on the basis that there were separate and independent bases for the decision which were not infected by a statutory breach.

17                  No sufficient or adequate basis for a successful appeal from the reasons of the Federal Magistrates Court below or of the Tribunal have been established by the appellant.

18                  The appeal must be dismissed, and the appellant ordered to pay the first respondent’s costs.

Associate:

Dated: 8 November 2006