FEDERAL COURT OF AUSTRALIA

SZLHR v Minister for Immigration & Citizenship [2008] FCA 1160

Migration Act 1958 (Cth) s 426A

SZEZI v Minister for Immigration & Citizenship [2005] FCA 1195 applied

SZLHR and SZLHS v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 354 of 2008

SUNDBERG J

8 AUGUST 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed.

2.                  The applicants pay the first respondent’s costs of and incidental to the application fixed at $2,500.

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

REASONS FOR JUDGMENT

1                     The background to this application and the facts upon which the applicants relied before the Tribunal and the Federal Magistrates Court are set out in the Magistrate’s reasons for dismissing the application, and in more detail in the Tribunal’s reasons for affirming the decision of the delegate of the first respondent to refuse the applicants a protection visa.

2                     The applicants did not accept the Tribunal’s invitation to appear before it to give oral evidence and present arguments. The letter of invitation informed them that it had considered the material before it, but was unable to make a favourable decision on that information alone. The Tribunal proceeded with its consideration of the application pursuant to s 426A of the Migration Act 1958 (Cth).

3                     After referring to the claims made by the first applicant, the Tribunal said at page 6:

The Tribunal is unable to establish the facts of the matter. The applicant was put on notice, in writing, by the Tribunal that it was unable to make a decision in his favour on the basis of the material before it. The applicant did not send any further material, nor did he take the opportunity offered to him of attending a hearing and presenting his claims orally.

4                     The applicants’ grounds of review before the Magistrate were:

(a)                that they were denied natural justice because the Tribunal failed to provide an opportunity for them to appear before it;

(b)               error of law and lack of procedural fairness;

(c)                breach of s 424A of the Act.

5                     The applicants’ complaint under ground (c) appears to have been that the Tribunal failed to give them “particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision”: sub‑s (1)(a). After quoting a passage from the judgment of Allsop J in SZEZI v Minister for Immigration & Citizenship [2005] FCA 1195, the Magistrate dismissed this ground as follows at [14]‑[15]:

The Tribunal, having read all the material and evaluated its contents and weight, was unable to be satisfied that the applicant had a well‑founded fear of persecution because of the perceived inaccuracies in the information. The reason for the Tribunal decision was no more than that. It was the applicant’s lack of further assistance and explanation that was the reason for the decision.

…

This Tribunal did not make positive findings of facts about the position of the applicant but, rather, rejected his claims because of its inability to be satisfied on the lack of information before it that Australia owed protection obligations to him …

6                     The Magistrate was of the view that all three grounds of appeal were adequately addressed by applying SZEZI and another case to which he referred, SZCIA v Minister for Immigration & Citizenship [2006] FCA 238. His Honour dismissed the application. The dismissal was made pursuant to Rule 44.12 of the Magistrates Court Rules, which provides that on an application for an order to show cause, the Court may, if it is not satisfied that the application has raised an arguable case, dismiss the application. Such an order is interlocutory: subrule (2). The applicants require leave to appeal. They have thus far proceeded as if they have an appeal as of right. I will treat them as applying for leave.

7                     The grounds in the applicants purported “notice of appeal” to this Court are:

(a)                The Tribunal did not understand their fear of harm and misapplied the relevant law. The Tribunal failed to assess the cumulative effect of separate incidents suffered by them.

(b)               They were denied procedural fairness. The Magistrate “failed to consider [that they] did not attend the hearing due to misdirection and unawareness about the process of hearing”.

8                     There is no substance in ground (a). The Tribunal recorded the first applicant’s claims upon which his fear of persecution was based, and said that his application was not supported by any evidence. Immediately before the passage set out at [3] the Tribunal said at page 6:

The first applicant has made a number of unsubstantiated claims in relation to his membership and active involvement in the BJP; his father’s involvement in the VHP and RSS; his involvement as a member of the BJP in the Gujarat election campaign which took place after the Godhra incident; and that he was part of a post election procession which was attacked by opposition members who threw stones. The first applicant also claimed that he was attacked at night when returning home from his work and then, six months later, he and the second applicant were attacked when returning to their home at night after attending a birthday party.

It was then that the Tribunal said it was “unable to establish the facts of the matter”, and that the applicants had not responded to its invitation to attend a hearing and provide further material.

9                     This ground ignores the fact that for want of supporting material, which the first applicant may have been able to provide had he attended the hearing, the Tribunal was unable to satisfy itself that the “separate incidents” had occurred. Having regard to the applicants’ failure to attend the hearing, they deprived themselves of the possibility that the first appellant could have relevantly satisfied the Tribunal. The same applies to the claim that the Tribunal did not understand the applicants’ fear of harm. Without being satisfied that the incidents upon which they relied took place, the Tribunal was obviously unable to assess their fear of harm. It was not explained what the applicants meant by “misinterpreted” the law.

10                  Ground (b) is also without any prospect of success. There was no evidence before the Magistrate as to why the applicants did not attend the hearing.

11                  Although it is not a proposed ground of appeal, I should say that the s 424A ground pursued before the Magistrate has no merit. In SZEZI Allsop J said at [29]:

The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well‑founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.

I agree with the Magistrate that this passage is applicable to the present case.

12                  Because there is no prospect of the applicants’ establishing either of their grounds of appeal, or a ground based on s 424A, the application for leave to appeal must be dismissed.

Associate:

Dated:         8 August 2008