FEDERAL COURT OF AUSTRALIA

SZLYF v Minister for Immigration and Citizenship [2008] FCA 1707

Migration Act 1958 (Cth) s 424A

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

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed

Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 74 ALJR 405 cited

SZLYF and SZLYG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD1315 of 2008

LOGAN J

11 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 Appellants are each citizens of the Republic of India.  They are husband and wife.  The male Appellant has appeared here today on his own behalf and on behalf of his wife.  The Appellants arrived in Australia on 1 April 2007.  The following month, on 9 May 2007, they lodged applications for a protection visa with the Department of Immigration and Citizenship.  The female Appellant made no separate claim for a protection visa.  By that I mean that her claim for a protection visa was dependant upon the acceptance of the claim made by her husband, the male Appellant.  On 7 August 2007 a delegate of the Minister for Immigration and Citizenship refused the protection visa applications.

2                     Later that month, on 31 August 2007, the Appellants applied to the Refugee Review Tribunal (the Tribunal) for a review of the decision of the Minister’s delegate.  On 15 January 2008, having delayed the publication of its decision so as to take into account the originals of documents already submitted to it in copy form by the Appellants, the Tribunal decided, for reasons which were then published, to affirm the decision of the Minister’s delegate.  That decision and those reasons were sent to the Appellants under cover of a letter that day.  The Appellants in turn then sought the judicial review of the Tribunal’s decision by the Federal Magistrates Court.  On 5 August 2008, the Federal Magistrates Court ordered that the application for judicial review be dismissed.

3                     The Appellants have then thereafter appealed to this Court from the Federal Magistrates Court.  There are two grounds of appeal specified in the notice of appeal.  They are as follows:

1.                  The Federal Magistrate erred in finding that the Tribunal complied with s 424A of the Migration Act 1958 (Cth).

2.                  The Federal Magistrate erred in finding that the Tribunal interpreted the meaning of a refugee properly.

4                     I shall consider each of these grounds of appeal in turn.  Before so doing it is desirable to make brief reference to the grounds upon which the claim for a protection visa was advanced. 

5                     The male Appellant claimed to fear persecution by reason of his political opinion.  He claimed in his protection visa application that he and his family had been strong supporters of the following Hindu organisations; Shiv Sena, Vishwa Hindu Parishad and the Bharatiya Janata Party (BJP) in Gujarat.  He further claimed that he had held office in Shiv Sena in his local area, and that he had worked as a volunteer for the BJP.  The male Appellant’s claim was that he had been involved in supporting the local BJP candidate in the February 2000 elections.  His claim was that during those elections, a local Muslim political figure in Gujarat, whom he named and who supported the Congress Party, had come to his family textile business.  The purpose of that visit was to advocate support by the male Appellant, for the congress party.  This named Muslim political figure, so it was claimed, wished to have the male Appellant killed. 

6                     He claimed that, after the visit to the family textile business, four Congress Party workers with a hired “hitman,” had come to the textile business, threatened to kill him and his family, so as to stop them campaigning for the BJP.  The male Appellant’s claim was that the police were unable to protect him, that he had tried to relocate within India to avoid trouble and that it had been difficult so to do. 

Ground 1 – Section 424A

7                     Prior to giving its final decision, and after conducting a hearing, the Tribunal sent to the male Appellant, who was the nominated contact, an invitation inviting him and his wife to comment upon particular matters which were set out in a letter dated 27 November 2007.  Regard to that letter discloses that the Tribunal sought comment upon apprehended inconsistencies between statements earlier made to the department by the male Appellant, and evidence given at the Tribunal’s hearing, as well as information of a general nature from diplomatic and other sources available to the Tribunal, concerning the general prevailing position in Gujarat.

8                     The Appellants made a lengthy response, in writing, to this invitation, supported by translated documentation.  The learned Federal Magistrate found no breach of s 424A in the course followed by the Tribunal.  Indeed, it is a moot point whether the learned Federal Magistrate regarded the Tribunal as falling under any obligation to send an invitation to the Appellants under that section: see para 43 of her Honour’s reasons. 

9                     When asked to expand upon the ground in oral submissions, no written submissions having been filed, the male Appellant responded “No.”  The Minister, very properly, highlighted the letter concerned and then made substantive submissions concerning whether or not, notwithstanding the absence of developed argument for the appellants, there was any breach of s 424A. 

10                  Two points, in particular, were advanced on behalf of the Minister.  The first was that to the extent that the letter highlighted inconsistencies and sought comment, it was doing no more than exposing a potential thought process on the part of the Tribunal, and hence not referable to “information” as that term is to be understood for the purposes of s 424A.  It was further submitted that, to the extent that the letter highlighted information that had come from the Appellants, all was of a generic nature.  The exceptions found in s 424A(3)(a) and (b) and I think, (ba), were pertinent.  Express reference was not made to s 424A(3)(ba). 

11                  In any event, when one has regard to the terms of the observations made by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 especially at paras 15, 17 and 18 and to the exceptions for which s 424A(3) provides, it seems to me that the Tribunal was not under any obligation derived from s 424A, to invite the Appellants to comment upon information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review.  Rather, the letter is one which might fairly be categorised as an invitation given, pursuant to s 424(2) of the Migration Act, to give to the Tribunal additional information. 

12                  However one approaches the contention that the Tribunal has breached s 424A, it seems to me that it must fail. 

Ground 2 – Alleged Misinterpretation of the Meaning of the word “Refugee”

13                  This was not in terms, a ground pursued for the Federal Magistrate.  Again, it was not the subject of any written submission on behalf of the Appellants.  Further, when invited to expand in oral submissions upon the ground, the male appellant replied, “No”.  One way of dealing with this ground in those circumstances, would be to treat it as so devoid of particularity as not to amount to a meaningful ground of appeal.  Once again, and with respect properly, the Minister sought instead to highlight the way in which the Tribunal had dealt with the question of whether satisfaction of the male Appellant’s and hence the female Appellant’s status as a refugee had been dealt with in the Tribunal.  In effect, the Tribunal’s reasons were subjected to a critical analysis in this regard. It appears that this course may also have been followed before the Federal Magistrates Court. 

14                  Attention was particularly drawn to a passage in the Tribunal’s reasons which appears at Appeal Book page 214.  I first read a sentence which appears there and do so reading it in isolation:

Based on the country information referred to above, the Tribunal does not accept that there exists political violence at such a level in Gujarat state that VHP members or supporters lives are at risk from supporters of opposition parties. 

15                  Read in isolation, and if one were to regard the Tribunal as having a view that satisfaction as to refugee status could only be achieved in the event of a threat to life, there would be very serious concern indeed that the Tribunal had misunderstood the basis upon which satisfaction as to a person’s being a person to whom Australia owed protection obligations existed.  So reading a Tribunal or, for that matter, any administrator’s reasons is something one must not do as a judicial officer.  As Brennan CJ and Toohey, McHugh and Gummow JJ, remarked in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at page 272, the proposition that a court should not be concerned with looseness in the language nor with the unhappy phrasing of the reasons an administrative decision maker is well settled:

They recognise the reality that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon overzealous judicial reviews by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

16                  It is always important to read a Tribunal’s reasons in the context in which they came to be given.  In this case and in this context, it must be recalled that the reasons of the Tribunal are responsive to a claim for a protection visa put on the basis that the male Appellant’s life was at risk.  There are other passages in the Tribunal’s reasons also found at page 214 of the Appeal Book which serve to demonstrate that the Tribunal was under no misapprehension that a protection obligation under the Convention could only arise if an Applicant’s life were at risk.  Without intending to be exhaustive, I cite the following passages:

On the basis of the credible evidence before it, the Tribunal cannot be satisfied that any harm experienced by the applicant [the male appellant] at this time were sufficiently serious as to constitute persecution.  Moreover, the Tribunal does not accept that the applicant experienced ongoing threats to his life or any other form of persecution on a continuing basis after the elections and up until the time of his departure in April 2007.  Nor does it accept that he would be at risk of ongoing harm if he were to return to India now or in the reasonably foreseeable future. 

17                  Then in the sentence which immediately follows, the one which I have earlier in isolation cited, one sees the following:

Nor is there any evidence to suggest that the applicant would face harm amounting to persecution simply as a member of the Shiv Sena or the VHP without more. 

18                  In reaching these conclusions, the Tribunal has made a value judgment based on its assessment of the credibility of the claim for a protection visa advanced by the appellants.  As it happens, and having regard to inconsistencies which it highlighted, the Tribunal did not accept the claim advanced.  The Tribunal’s reasons for so doing are logical.  As the learned Federal Magistrate observed at para 30 of her Honour’s reasons for judgment by reference to what had been said in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 74 ALJR 405 at [67], credibility is a matter for the Tribunal “par excellence”, and the Tribunal’s findings were open to it for the reasons it gave on the material before it.

19                  There is then, in my opinion, no substance in ground 2. 

20                  These conclusions are themselves enough to dispose of the appeal. However, it is desirable that attention be drawn to a further passage which appears in the Tribunal’s reasons at Appeal Book page 214.  The Tribunal there states:

The Tribunal does not accept the applicant’s –

I interpolate, the male Appellant’s –

claim that the police refused to protect him because of the influence of his enemy.  The independent information which the Tribunal accepts, overwhelmingly supports the conclusion that the police in Gujarat favour the BJP.  The Tribunal is satisfied that if the applicant had, in the past, been unable to obtain help from the police, or from his party leaders, it is because any difficulties he had were too trivial.  The Tribunal is satisfied that were he to suffer serious harm, or threat of harm amounting to persecution, the state authorities would provide effective protection.

21                  This finding was, in my opinion, one reasonably open to the Tribunal.  In light of that finding a very real question, indeed, would be raised were there otherwise to be any merit in the grounds appeal, as to whether relief ought to be denied as a matter of discretion, on the basis of futility.  See SZBYR at 1197 – 1198, paras 27 - 29. 

22                  For these reasons then, the appeal is dismissed.

Associate:

Dated:         13 November 2008