FEDERAL COURT OF AUSTRALIA

SZJPI v Minister for Immigration & Citizenship [2008] FCA 281

SZJPI AND SZJPJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1256 OF 2007

JESSUP J

19 FEBRUARY 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeals be dismissed.

2.                  The appellants pay the costs of the first respondent fixed in the sum of $2,901.

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

REASONS FOR JUDGMENT

1                     These are appeals from a judgment of the Federal Magistrates Court of Australia, given on 22 June 2007, dismissing applications for declarations and for writs of mandamus, certiorari and prohibition in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) given on 13 September 2006 and handed down on 10 October 2006.  In that decision, the Tribunal affirmed an earlier decision of a delegate of the respondent Minister not to grant the appellants Protection (Class XA) visas pursuant to the Migration Act 1958 (Cth) (“the Act”).

2                     The appellants are husband and wife, and came to Australia from India on 3 May 2006.  The appellant husband applied for a protection visa upon the ground that he had a fear of persecution, by reason of his political opinion, should he be obliged to return to India.  The appellant wife had no separate application based upon such a fear of her own, her application being justified by her status as a dependant of her husband.  The appellant husband represented himself today.  There was no appearance from his wife, but he assured me that she is aware of the hearing today and is prepared for her appeal to abide the outcome of her husband.  In the circumstances, I shall deal with the appeal of the husband only and refer to him hereafter as “the appellant”.

3                     In its decision, the Tribunal noted that it had advised the appellant that it was unable to make a decision that would be favourable to him on the information that was then available to it.  It invited him to appear before the Tribunal, and to give oral evidence and to present arguments on 6 September 2006.  The appellant did not attend on that day, and the Tribunal disposed of the matter pursuant to its powers under s 426A of the Act.  It disposed of the matter entirely by reference to the information which it had on the papers.  So far as the appellant’s own case was concerned, necessarily that information was contained in his visa application and in a document that accompanied it. 

4                     The appellant’s case was that he had been a member and supporter of the Congress Party in India, but that the State in which he lived, Gujarat, was, to use his words, “under the grip of BJP”.  He put it that supporters of the BJP had been to his plastics manufacturing business in Ahmedabad making allegations against him and his company.  He made a number of assertions about the consequences which would befall him as a supporter of the Congress Party in an environment in which there were BJP supporters in predominance.  For example, according to the Tribunal, the appellant said:

I was forced to accept the money and leave the business many times by the Close aid of the current Chief Minister who state that if I do not surrender my business to them they may get me killed.

5                     The Tribunal dealt with the appellant’s claims in the following way:

It seems from the applicant’s Protection Visa application that he fears persecution because he is a member of the Congress Party, and the BJP in his state is trying to suppress political parties in his state of Gujarat.  While he claims to have been arrested, detained and manhandled by the police in the past, he gives no detail about these incidents, such as the date they occurred, the reason given for his arrest, the duration of his detention or the nature of the mistreatment he claims to have suffered.  In his application to the Tribunal for review, the applicant did not provide any further evidence, and has not done so subsequently.  The applicant was invited to appear before the Tribunal but did not do so, leaving his claims unclarified and questions unanswered.  On the evidence before it, the Tribunal is not satisfied that the applicant has suffered persecution in the past, nor that he has a well-founded fear of persecution within the meaning of the Convention if he returns to India in the foreseeable future.

6                     In his grounds in support of his application in the Federal Magistrates Court, the appellant alleged a breach of s 424A of the Act in the following terms:

There was certain informations used by the tribunal without providing an opportunity to respond.  The adverse informations used by the tribunal was not given by the applicant for the purpose of review.  This information was given for protection visa claim purpose to the delegate in deciding protection visa. … The tribunal did not disclose the information in accordance with S 424A(1) of the migration act.

The tribunal did not take into account:

… any evidence or materials before him, neither the tribunal made an inquiry or send any letter of invitation to comment on the adverse information under section 424A(1), which the tribunal relied upon or used against the applicant to affirm the delegates decision. The similar kind of information used by the tribunal member without the applicant’s presence or without providing an opportunity to comment on the information before the tribunal.

7                     The Federal Magistrate dealt with the first of these grounds in the following terms:

A fair reading of the Tribunal’s decision makes it clear that it was not the information provided in support of the protection visa application to which the Tribunal had regard in affirming the decision under review.  Rather, it was the paucity of evidence and the inadequacy of the evidence provided by the applicants that was the reason for the Tribunal affirming the decision under review.

Her Honour referred to SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 21 and to SZECI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1201.  Her Honour continued:

Section 65 of the Act provides that it is for an applicant to satisfy a decision maker, such as the Tribunal that the applicants meet the criteria necessary for refugee status.  Section 65(1)(b) mandates that if the Tribunal is not so satisfied then it must refuse a protection visa.

8                     On the second ground relied upon by the appellant in the Federal Magistrates Court, the Federal Magistrate said:

To the extent that ground 3 [which is the ground to which I have referred as the second ground] makes such a complaint, [namely that the Tribunal did not take into account any evidence or material before it] a fair reading of the decision makes it clear that the Tribunal had regard to the material provided by the applicants in support of the protection visa application.  That was the only material to which the Tribunal was able to have regard as the applicants provided no further information to the Tribunal for the purposes of its review.

Subsequently, her Honour said that the Tribunal had had regard to the only information which was available to it, namely, the applicant’s statement in support of the protection visa application.  It had identified the inadequacy of that material to satisfy the criterion for refugee status under the Convention.  In relevant respects her Honour concluded:

Ultimately, as referred to above in these reasons, it is for an applicant to satisfy the Tribunal that the applicant meets the criteria for being a refugee.  Section 65(1)(b) of the Act otherwise states that if the Tribunal is not so satisfied, it must refuse a protection visa.

9                     In his Notice of Appeal in this court, the applicant relied upon the one ground.  Namely:

The FM failed to find that the tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error:

(a)        There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1).

10                  It is apparent that the ground advanced by the appellant in this court is, in substance, the first of the two grounds upon which he relied before the Federal Magistrate.  That ground was dealt with by her Honour squarely, clearly and, if I may say so with respect, adequately in the passage to which I have referred above. The appellant relied upon written submissions filed on his behalf in this appeal, but nothing in them raises any doubt about the correctness of her Honour’s disposition of this point.  The appellant appeared before me on his own behalf today, but chose not to make any oral submissions in addition to the written ones filed on his behalf.

11                  This appears to have been a case in which the Tribunal had only the appellant’s own say-so upon which to rely as a factual basis for any findings that may be favourable to him in his claim for a protection visa.  The Tribunal found that the contents of the application were simply inadequate to satisfy it of the matters required under the Convention.  This was not, therefore, a case of information which had come to the Tribunal and which would be the reason, or part of the reason, to affirm the decision under review.  This was a case in which the applicant’s own factual case before the Tribunal simply did not cross the bar.  It comes within the category of gaps, defects or lack of detail or specificity in evidence referred to by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477; approved by the Chief Justice and Gummow, Callinan, Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 616.  That was in essence the finding of the Federal Magistrate and it was manifestly the correct one in the circumstances. 

12                  I propose to dismiss the appeal.

Associate:

Dated:         6 March 2008