FEDERAL COURT OF AUSTRALIA

SZIRO v Minister for Immigration & Citizenship [2007] FCA 260

Migration Act 1958 (Cth) s 424A

SZIRO v Minister for Immigration and Multicultural Affairs [2006] FMCA 1561 affirmed

SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] applied

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 42-43 applied

SZIRO, SZIRP, SZIRQ AND SZIRR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2108 OF 2006

HEEREY J

26 FEBRUARY 2007

SYDNEY

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

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 Federal Magistrate Scarlett of 12 October 2006, SZIRO v Minister for Immigration and Multicultural Affairs [2006] FMCA 1561.  His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal of 16 March 2006.  The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant a protection visa to the appellants. 

2                                             The appellants are citizens of India who arrived in Australia on 1 August 2005.  The appellants are a married couple and their two children.  On 9 September 2005 the appellants lodged an application for a protection visa.  Only the appellant husband made claims under the Convention. The appellant husband’s application will govern the outcome of the applications of the other members of his family. I shall use the term appellant as referring to the appellant husband. 

3                                             In the application for a protection visa the appellant claimed to have a well founded fear of persecution by reason of his political opinion.  He claimed to be a freelance camera journalist who composed articles for the local newspaper about human rights issues in India.  He asserted his photographs and writings enraged government supporters.  Although he was threatened and told to stop writing he claimed that he continued and this enraged government supporters further.  Subsequently the appellant and his family left India.

4                                             The delegate refused the application for a protection visa and on 16 November 2005 the appellant applied to the Tribunal for review.  On 5 January 2006 the Tribunal sent a letter to the appellant advising that it was unable to make a decision in his favour on the information before it alone and inviting the appellant to appear before it. The Tribunal did not receive a response to this invitation.  The appellant failed to appear at the appointed day of the hearing (23 February 2006). The Tribunal handed down its decision on 16 March 2006. 

The Decision of the Tribunal 

5                                             As the appellants failed to appear the Tribunal proceeded pursuant to s 426A Migration Act 1958 (Cth).  The Tribunal found that it was unable to satisfy itself as to the truth of the claims of the appellant.  It said that the claims were vague and contained no detail.  Even if the elements of the claims were accepted, because of the lack of detailed information the Tribunal was not satisfied that the appellant would not be able to resolve his problems by relocation within India.  The Tribunal found it could not be satisfied that the appellant would suffer harm amounting to persecution in India for reason of his political opinion or for any other reason. The Tribunal found the appellant did not have a well founded fear of persecution for reason of his political opinion or any other Convention reason.

Grounds before the Federal Magistrate 

6                                             In the amended application before the Federal Magistrate the appellant claimed the following grounds: 

(1)        That the Tribunal’s decision lacked the required satisfaction in terms of s 414 of the Act because it failed to carry out the mandatory function of reviewing the appellant’s claims on the papers with the information that was available on file.

(2)        That the Tribunal’s finding that the appellant did not provide any detailed information about the threats that he had received or their source was in error because the appellant had given reasons in his protection visa application form, in particular his answers to questions 40 to 43.

(3)        That the Tribunal failed to act under s 424 of the Act by calling for further information from the appellant.

7                                             In his written submissions the appellant submitted to his Honour that the Tribunal had written information about the threats received and therefore the Tribunal failed to carry out its duty it ascertain whether there would be a real chance of the appellant facing serious harm within the meaning of s 91R of the Act.  At the hearing the appellant was represented by counsel who also submitted that the Tribunal failed to consider exercising its jurisdiction under s 426A(2) of the Act. 

The Decision of the Federal Magistrate 

8                                             The Federal Magistrate found this was a case where the appellant was invited to attend the hearing of the Tribunal and did not attend.  The Tribunal had made it “pellucidly clear” that it could not make a decision in favour of the appellant on the basis of the information before it.  An invitation under s 425 had been issued and complied with s 425A.  There was no obligation on the Tribunal to reschedule or delay the hearing under s 426A(2).  There was no breach of procedural fairness by the Tribunal.  The Tribunal was not under any obligation to exercise its powers under s 424 to conduct its own investigations.  There was no breach of s 424A and nothing to show that the Tribunal did not comply with its obligations under s 414.  The Tribunal had conducted a review of the relatively brief information before it and it was not surprising that the information was insufficient to allow the Tribunal to be satisfied.

The appeal to the Federal Court

9                                             The notice of appeal to the Federal Court raised the following grounds:

(1)        the Federal Magistrate erred by failing to recognise the appellant’s argument that the Tribunal did not complete the review of the appellant’s application form and subsequently finding that insufficient information was provided in response to questions 40 to 44;

(2)        the Federal Magistrate should have accepted the appellant’s argument that the Tribunal acted unfairly by not calling for further information under s 424;

(3)        the Federal Magistrate erred in failing to accept that the Tribunal was manifestly unreasonable in its failure to be satisfied that the appellant would to suffer serious harm amount to persecution.

10                                          At the hearing before me the appellant was not represented but put his case to the Court with the assistance of an interpreter. 

Ground 1: Failure to complete the review process on the information available

11                                          The Tribunal did complete the review on the information available.  It is clear that the reason for the decision was the inadequacy of the information before it in the context of the appellant’s failure to attend the hearing.  This finding was open to the Tribunal.  As was said by the Full Court in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15], there must be “a refusal if the decision-maker is not affirmatively satisfied that the criteria for the grant of visa in question had been satisfied.”

Ground 2: Failure to exercise powers under s 424

12                                          The Tribunal’s power under s 424 is clearly discretionary.  The Tribunal does not have a duty to investigate the appellant’s claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 42-43. No jurisdictional error is made out. 

Ground 3: Failing to find risk of serious harm

13                                          This ground was really not raised before the Federal Magistrates Court.  In any event, it must also fail because the appellant had not provided adequate details for the Tribunal to be satisfied. 

14                                          At the hearing of the appeal before me the appellant relied on some further matters.  He tendered a number of documents apparently provided from India.  Two are certificates dated 10 February 2007 by persons in India making statements about the appellant’s work as a freelance reporter and also about any attack on him by people in the community and attendance at a hospital.  The third document is a medical certificate apparently showing that the appellant was admitted to hospital and was treated as an out-patient for one week by an orthopaedic surgeon.  Along with these documents the appellant also sought to raise other matters going to the merits of his claim. Obviously these were matters not put before the Magistrate, let alone the Tribunal, and do not make out a case of error by the Magistrate.

15                                          Finally, the appellant claimed he did not receive the letter from the Tribunal advising of the hearing.  Again, this ground was not raised before the Magistrate.  No error has been shown in the decision of the Federal Magistrate and the appeal will be dismissed with costs.

Associate:

Dated:         26 February 2007