FEDERAL COURT OF AUSTRALIA

SZLOJ v Minister for Immigration and Citizenship [2008] FCA 1693

Migration Act 1958 (Cth) ss 422B(1), 424A

SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 cited

SZLOJ and SZLOK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD1254 of 2008

LOGAN J

10 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The Appellants are to pay the First Respondent’s costs of and incidental to the appeal to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The Appellant and his wife are each citizens of the Republic of India.  They came to Australia on 8 April 2007.  The following month, on 12 May 2007, they lodged an application for a protection visa with the Department of Immigration and Citizenship.  The fate of the Appellant’s wife’s protection visa application was governed by that of her husband.  By that I mean that she made no separate claim for a protection visa. 

2                     Initially, a delegate of the Minister refused their applications for a protection visa.  That occurred on 23 July 2007.  As was their right under the Migration Act 1958 (Cth), the Appellant and his wife then sought the review of the Minister’s delegate’s decision by the Refugee Review Tribunal. 

3                     On 19 September 2007, for reasons which have been published, the Tribunal decided to affirm the decision not to grant the Appellants protection visas.  That decision was communicated by the Tribunal to the Appellants under cover of a letter of 11 October 2007.  The Appellants then sought the judicial review of the Tribunal’s decision by the Federal Magistrates Court.  On 23 July 2008, for reasons which were then given, the Federal Magistrates Court dismissed the judicial review application.  It is from that decision that the Appellants now appeal to this Court. 

4                     There is one ground of appeal identified in the Appellants’ notice of appeal.  That ground is expressed in the following way: 

The Federal Magistrate failed to find that the Tribunal’s decision was in breach of section 424A of the Migration Act 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 section 424A, subsection (1). [sic]

5                     By s 422B(1) of the Migration Act 1958, it is provided that Div 4 of Pt 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which Div 4 deals.  One such matter is the provision of information to an applicant that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review.  That is the province of s 424A.  The section envisages that the Tribunal will give particulars of any such information to an applicant and extend an opportunity to comment upon that information before reaching its final decision on a review application.

6                     There are exceptions specified in s 424A with respect to the application of that section.  Materially those exceptions are to be found in s 424A(3)(a) and especially (ba).  Section 424A(3) materially provides:

(a)        this section does not apply to information:

(a)        that is not specifically about the applicant or another person, and is just about a class of persons of which the applicant or other person is a member;

…

(ba)      that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department.

7                     The Tribunal did not send to the Appellants any letter which purported to comply with s 424A.  The learned Federal Magistrate decided that there had been no breach by the Tribunal of s 424A.  Necessarily the question which arises is whether or not, in the circumstances obtaining, there was any obligation on the part of the Tribunal to give particulars of information to the Appellants, together with the requisite invitation, as envisaged and required of the Tribunal by s 424A? 

8                     Observations concerning the meaning of effect of s 424A were made by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, at 1195 – 1196, [15] – [17].  In the joint judgment of Gleeson CJ and Gummow, Callinan, Heydon and Crennan JJ, one there finds the following in para 15:

Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review.  Rather the Tribunal’s obligation is limited to the written provision of “particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review”.

9                     And then in para 17:

The “reason, or a part of the reason for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention.  When viewed in that light it is difficult to see why the relevant passages in the appellant’s statutory declaration would itself be “information that the Tribunal considers would be the reason, or part of the reason for, affirming the decision that is under review”.  Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellant’s claims to be persons to whom Australia owed protection obligations.

10                  Appended to the protection visa application was a statement of the male Appellant.  That statement provided the basis upon which a claim for a protection visa was made.  It also provided, for the reason which I have already given, the basis upon which the Appellant’s wife advanced her claim.  The basis of the claim for a protection visa, as there made, was not enlarged upon in the proceedings of the Tribunal.  That is because, though invited to attend at a hearing and present evidence, the Appellant and his wife did not take advantage of that opportunity.  The Tribunal, then, as it was entitled to do under the Migration Act 1958, decided the case on the basis of the material which it did have, and that material, in essence, was the statement to which I have referred.

11                  Of that material, the Tribunal observed, in its reasons at Appeal Book page 141, the following:

On the basis of the very limited information available to it, the Tribunal does not accept the applicant’s claims.  The Tribunal does not accept that the applicant was a BJP and congress worker, or that he was well known due to his political activities.  The Tribunal does not accept that the applicant was active in either party and was threatened and attacked on multiple occasions because of such activities.  The Tribunal does not accept that the applicant had learned the secrets of the BJP and was targeted for that reason.  The Tribunal does not accept that the applicant was discriminated against because he was not a BJP supporter, or that he was being forced to sell his business because of his political activities, or that he was otherwise targeted.  The Tribunal does not accept that there is political revenge or conspiracy against the applicant, that people have been looking for him since he departed his area, or that he left India to avoid persecution for these reasons.

12                  The Tribunal is not obliged, in a case like this, uncritically, to accept a statement lodged with a visa application.  An applicant for a visa and, in turn, an applicant for review of an adverse visa decision by the Refugee Review Tribunal, is not subject to any formal onus of proof.  Nonetheless, it is obviously in the interests of such a person to detail as best they can a basis upon which it is said that they have an entitlement to a protection visa.  If a claim is but vaguely made, that necessarily must have ramifications in terms of an assessment of whether the person is one to whom Australia owes a protection obligation.  Equally, neither the Minister, nor his delegate, nor later the Tribunal, in circumstances such as the present, is obliged, uncritically, to give credibility to a claim but vaguely made in writing in a statement appended to a protection visa application.  When the Appellant and his wife chose not to take advantage of the invitation to attend at the Tribunal hearing, they necessarily deprived the Tribunal of an ability to form an assessment, through face-to-face contact, of their credibility.

13                  It appears, from the reasons of the learned Federal Magistrate at para 9, that before the Federal Magistrates Court, the male Appellant said that he did not have an opportunity to produce documents as proof.  A claim of a similar kind was advanced before me today.  The Federal Magistrate’s reasons record that his Honour pointed out to the male Appellant that the Tribunal had, in advance of its decision, written a letter telling him to provide the Tribunal with any documents, and that he had not done so and nor had he asked the Tribunal for any further time.  The learned Federal Magistrate then observed:

I am unable to assist the Applicant in relation to this ground.

14                  An appeal to this Court from a decision of a Federal Magistrate is no place to seek to advance further a claim on the merits of whether or not a protection visa should be granted.  The same applies to the proceedings in the Federal Magistrates Court now under appeal.  When one has regard to the reasons of the Tribunal, it becomes apparent that the basis upon which the Appellants’ visa applications failed was a lack of detail grounding why it was that they were persons to whom Australia owed protection visa obligations.  In other words, the fate of the protection visa applications was the product of the way in which the Appellants had initially cast their application and their failure to take advantage before the Tribunal of the opportunity extended to them to supplement, in greater detail, the basis for their claims.

15                  Insofar as the Tribunal looked to material which the Appellants had themselves provided to the Department, and even putting their claim for notice under 424A at its highest, the problem is that the exception in s 424A(3)(ba) is engaged.  So much evidently was the view of the learned Federal Magistrate:  see para 10 of his Honour’s reasons.  That is certainly one reason why there is no merit in the ground of appeal advanced.  Another, in my opinion, is that in the circumstances, s 424A was not engaged at all because there was just no “information” to which the attention of the Appellants had to be drawn and an invitation consequently extended. 

16                  However one approaches the matter though, this is not a case in which a breach of s 424A by the Tribunal is evident.  There was no error on the part of the learned Federal Magistrate in concluding that no obligation under s 424A had fallen on the Tribunal.  As that is the only ground of appeal advanced, it follows that the appeal must be dismissed. 

Associate:

Dated:         13 November 2008