FEDERAL COURT OF AUSTRALIA

SZLJW v Minister for Immigration & Citizenship [2008] FCA 1230

Migration Act 1958 (Cth) ss 36, 65, 91R, 424A, 425, 425A, 426A, 441A

Migration Regulations 1994 (Cth)reg 4.350

Abebe v Commonwealth (1999)197 CLR 510cited

Minister for Immigration & Multicultural Affairs v SGLB (2004) 207 ALR 12 cited

NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 cited

Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210 cited

SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 cited

SZEFM v Minister for Immigration & Multicultural& Indigenous Affairs [2006] FCA 78 cited

SZLJW and SZLJX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 622 of 2008

EDMONDS J

14 AUGUST 2008

SYDNEY

THE COURT ORDERS THAT:

1.  The appeal be dismissed.

2.  The appellants pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an appeal from the Federal Magistrates Court (Scarlett FM): SZLJW & Anor v Minister for Immigration & Anor [2008] FMCA 575, dismissing an application for judicial review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) to refuse to grant a protection visa to the appellants.

Appellant’s Claims and Tribunal Findings

2                     The appellants are husband and wife and are citizens of India. The written claims of the first appellant (‘the appellant’) were contained in a statement attached to his application for a protection visa.  The second appellant did not put forward any independent claims.  The appellant claimed to fear persecution due to his political involvement with the Bharatiya Janata Party (‘the BJP’).  Specifically, he claimed that after the election, he and his wife were attacked and watched but were unable to obtain help from the police as they were unable to identify the assailants.  The appellants temporarily moved in with relatives but were located, so returned to their home.  The appellant also ceased work because he feared for his life.

3                     In refusing to grant the appellants protection visas, the delegate found that the appellant’s claims were vague and lacking in detail and doubted the veracity of his claims.  In any event, the delegate found that the appellant could avail himself of State protection.

4                     On 8 June 2007, the appellants filed an application with the Tribunal for review of this decision.

5                     By a letter dated 25 June 2007, the Tribunal invited the appellants to attend a hearing on 15 August 2007 to give oral evidence and present arguments in support of their case.  The invitation complied with the statutory requirements contained in s 425(1) and s 425A of the Migration Act 1958 (Cth) (‘the Act’) and reg 4.35D of the Migration Regulations 1994 (Cth)(‘the Regulations’).

6                     In a letter dated 19 July 2007, the Tribunal notified the appellant that the hearing was rescheduled for 17 August 2007.  The letter of 19 July 2007 complied with s 425 and s 441A and was sent to the appellant’s nominated address for service.

7                     The Tribunal did not receive a reply to the letter of 19 July 2007 and the appellant did not attend the hearing.  The Tribunal proceeded to make a decision on the papers pursuant to s 426A of the Act.

8                     The Tribunal found that the appellant’s claims were general and vague.  Specifically, the appellant did not provide details of his membership and role with the BJP, nor any detailed information about the alleged attacks, his reasons for returning to his home or how he financially supported himself and was able to afford to travel to Australia.  Ultimately, the appellant’s failure to attend the hearing meant that the Tribunal was unable to be satisfied that the appellant had a well-founded fear of persecution for a Convention reason and affirmed the delegate’s decision.

Proceedings in the Federal Magistrates CourT

9                     The appellants filed an application for judicial review in the Federal Magistrates Court on 27 September 2007 and an amended application on 18 December 2007.  The first ground in the amended application alleged that the Tribunal wrongly applied the law in relation to s 91R(l)(b) and s 91R(l)(c) of the Act.  No particulars were provided and the appellant was unable to explain aspects of the grounds in his amended application.  His Honour noted that the Tribunal did not make any findings as to whether the harmthe appellant claimed to fear was sufficiently serious to amount to persecution, or involved systematic or discriminatory conduct, but observed (at [24]):

‘It was not necessary for the Tribunal to do so because it was not satisfied, on the limited evidence before it of the veracity of the appellant’s claims.’

10                  The first and second grounds of the amended application also alleged a breach of s 424A of the Act.  His Honour found that there was no ‘information’ referred to in the Tribunal decision that was the reason or a part of the reason for the decision.  The reason for the Tribunal’s decision was simply the general nature of the appellant’s claims and lack of details identifying that the appellant had suffered any harassment, persecution or harm for a Convention related reason.  Such matters are ‘… conclusions or thought processes and not within the scope of s 424A(1) …’ (at [25]).

11                  The third ground of the amended application was described by his Honour as ‘somewhat confusing’.  The ground asserted that the Tribunal concluded that the appellant could relocate within India and did not apply the ‘correct test of relocation principles’.  As his Honour found, this ground was entirely misconceived as the Tribunal did not make a relocation finding and did not consider the issue of relocation, as it was not satisfied on the material before it that the appellants had a well-founded fear of persecution in India (at [26]).

12                  The Minister submitted that it is clearly established that it is for the appellant to make out his case before the Tribunal: Abebe v Commonwealth (1999)197 CLR 510 at 576 [187] per Gummow and Hayne JJ.  If the Tribunal cannot be satisfied on the basis of the material presented that the appellant’s claims are genuine it does not have any duty to make further inquiries: Minister for Immigration & Multicultural Affairs v SGLB (2004) 207 ALR 12 at [19] per Gleeson CJ, at [43]per Gummow and Hayne JJ, at [124] per Callinan J, or to investigate the appellant’s claims: NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 at [18] – [21] perJacobson J.  The Minister submitted that, for these reasons and those outlined in [9] – [11] above, the findings of the Tribunal and the Federal Magistrate’s Court reveal no error.

The Appeal to this Court

13                  The noticeof appeal filed on 2 May 2008 contains four grounds of appeal.  As was the case in the court below, the grounds of appeal do not appear to relate to the Tribunal’s decision.  The grounds are cast in very general terms and lack particulars.  Moreover, apart from the first ground, they fail to identify any error in the judgment of his Honour below which is properly the subject of the appeal.  Instead, they invite this Court to re-consider the reasons of the Tribunal: Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210 at [10].

14                  The Minister filed written submissions dealing with each of the grounds of appeal in the terms set out in [15] – [20] below.

15                  The first ground of appeal asserts that his Honour erred in failing to find that the Tribunal erred when it ‘wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes persecution as a member of a particular social group or religious persecution’.  As his Honour noted, this allegation appeared to relate to another case, as the appellant did not make claims to fear persecution on the basis of his religion or membership of a particular social group.  Further, the Tribunal did not make any findings as to the seriousness of the harm the appellant claimed to fear, because it could not be satisfied, on the limited evidence before it that the claimed harm had in fact occurred.  The Minister submitted that it was for the appellant to make out his case to the Tribunal, but he failed to do so.

16                  The second ground of appeal appears to raise three complaints.  First, the appellant claims that the Tribunal failed to provide ‘more opportunity to respond’.  The appellants did not appear at the scheduled Tribunal hearing on 17 August 2007 and did not request that the hearing be adjourned or re-scheduled.  In any event, the Tribunal complied with the statutory requirements and was entitled to determine the matter pursuant to s 426A of the Act.

17                  The second ground of appeal also alleges that the Tribunal generalised the appellant’s claims and failed to carry out the ‘real chance’ test.  The essential basis of the Tribunal’s decision was the inability of the Tribunal to reach the state of satisfaction to grant the appellant a protection visa as required by s 36(2) and s 65(1) of the Act.  The Minister submitted that the Tribunal clearly set out and considered the claims advanced by the appellant and ultimately rejected them because it was unable to reach the requisite state of satisfaction required by the Act.

18                  The second ground could also be seen as an allegation that the Tribunal failed to comply with the requirements of s 424A of the Act.  As was the case before his Honour below, the Minister submitted that the appellant has failed to identify any ‘information’ for the purposes of s 424A.  The reason for the Tribunal’s decision was simply the general nature of the appellant’s claims and lack of details identifying that the appellant had suffered any harassment, persecution or harm for a Convention related reason.  Such matters are thought processes and not within the scope of s 424A(l): SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18]; SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 at [23] per Bennett J and cases there cited.

19                  The third ground of appeal alleges that the Tribunal failed to apply the correct test of relocation principles and that the appellants were denied procedural fairness and natural justice.  As his Honour noted, this ground is entirelymisconceived.  The Minister submitted that the Tribunal did not make a relocation finding and did not consider the issue ofrelocation, as it was not satisfied on the material before it that the appellants had a well-­founded fear of persecution in India.

20                  The fourth ground of appeal asserts that the Tribunal took an ‘irrelevant matter’ into account, resulting in jurisdictional error.  Leaving aside that this ground was not raised below, the Minister submitted that there has been no attempt by the appellant to identify what ‘irrelevant matter’ was taken into account by the Tribunal and the ground cannot succeed.

21                  I agree with the Minister’s submissions in [15] – [20] above.

22                  On the hearing of the appeal, I asked the appellant, who appeared in person, to confirm that he had not filed any written submissions.  He confirmed that to be the case.  I also invited him to make any oral submissions he wished, but he declined.  I specifically raised with him the fourth ground of appeal because it had not been raised below, but he declined to identify the ‘irrelevant matter’ taken into account.

23                  After I reserved and came off the bench, my chambers received via facsimile a set of written submissions filed on behalf of the appellant.  I was informed that these submissions had been filed in the Court’s registry that morning, either during the course of the hearing or shortly afterwards.

24                  I have read and considered these belated submissions but they do not take the appellant’s appeal any further than the general grounds to be found in the notice of appeal.  

25                  No error has been identified in theapproach and findings of the Federal Magistrate or any jurisdictional error on the part of theTribunal, and none is apparent.  The appeal must bedismissed with costs.

Associate:

Dated:         14 August 2008