FEDERAL COURT OF AUSTRALIA

SZMIS v Minister for Immigration & Citizenship [2009] FCA 167   

MIGRATION – protection visa – Refugee Review Tribunal – appeal from judgment of Federal Magistrates Court – procedural fairness – judicial review

Migration Act 1958 (Cth) ss 424AA, 424A, 425

SZLQD v Minister for Immigration and Citizenship [2008] FCA 739
SZLXI v Minister for Immigration and Citizenship (2008) 103 ALD 589
Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12
NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528

SZMIS v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1859 of 2008

MARSHALL J

27 february 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal, fixed at $2,300.

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 appeals from a judgment of the Federal Magistrates Court which dismissed his application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent not to grant the appellant a protection visa.

2                     The appellant is a citizen of India. He claimed to fear persecution by reason of his political opinion. He said he was “an active social worker” in the Bharatiya Janata Party (“BJP”).

3                     In particular, the appellant made the following claims:

·                    He received threats to kill from political opponents.

·                    On 12 August 2003 he and his wife were attacked at a bus stop by a group of political opponents belonging to a Muslim party. The appellant reported this incident to the police but did not receive protection from them.

·                    The appellant was threatened with violence to withdraw his complaint to the police and did withdraw it.

·                    The appellant then moved house but was still threatened by his attackers.

·                    He was attacked again after obtaining a visa to leave India.

The tribunal  

4                     The Tribunal accepted that the bus stop incident of 12 August 2003 occurred as the appellant claimed. The Tribunal considered that the attack and the other subsequent threats did not occur for the reason of the appellant’s political opinion. The Tribunal did not accept the appellant’s evidence that he had received threats because of interest in politics. It noted that the appellant said in his evidence before the Tribunal that he did not receive any direct threats after he moved house in 2005.

The court below

5                     In the Court below, the appellant advanced three grounds of appeal:

6                     The first ground is an unparticularised contention that there was an error of law and a jurisdictional error in the Tribunal’s decision. The Federal Magistrate found that this ground was meaningless in the absence of particularisation and does not on its face establish a jurisdictional error. I also find no error in this approach.

7                     The second ground before the Court below had two parts. Firstly,  that the Tribunal failed to follow proper procedure at the time of the hearing. Secondly, that prior to making its final decision the Tribunal failed to provide the appellant with an opportunity to respond to any adverse information, in accordance with s 424A(1) of theAct.

8                     There is nothing in the material before the Court to establish that the Federal Magistrate erred in finding that the Tribunal complied with its statutory obligations, specifically its obligation to invite the appellant to a hearing and to meet its obligations under s 425 to put dispositive issues to the appellant. The invitation of 8 February 2008, sent to the appellant, to a hearing on 18 March 2008 contained the required information in relation to time, date and place of the hearing and advised the appellant of the options available to the Tribunal if he did not appear. The appellant attended the hearing and had the assistance of an interpreter. The Tribunal’s reasons for decision state that at the hearing it considered the documents the appellant submitted and informed the appellant of matters likely to prove determinative, specifically the possible absence of a Convention nexus to the appellant’s claims. In addition, the Federal Magistrate correctly found that the Tribunal engaged in the requisite consideration of whether there was evidence that the appellant’s mental state was such that he was not able to take advantage of the invitation under s 425 of the Act in light of the appellant’s suggestion at the end of the hearing that he may commit suicide if he had to return to India. Therefore, the first part of the second ground was not made out and the Federal Magistrate was correct to so determine.

9                     The Federal Magistrate found that the alleged breach of s 424A lacked particulars to identify the relevant information the Tribunal was said to have failed to put to the appellant for comment. The Federal Magistrate correctly found that the alleged breach of s 424A had no basis since no information before the Tribunal fell within that section. Information provided by the appellant to the Tribunal and independent country information were exempted from the operation of s 424A by s 424A(3). Therefore the Federal Magistrate correctly found that there was no obligation on the Tribunal to put its provisional reasoning to the appellant under s 424A of the Act.

10                  The amended application added a third ground that the Tribunal failed to comply with s 424AA(b)(iv) of the Act. The Federal Magistrate correctly found that this section does not impose a mandatory obligation on the Tribunal. Rather, s 424AA complements the Tribunal’s obligations under s 424A by enabling the Tribunal, if it so chooses, to give to an applicant orally during the hearing any information which the Tribunal considers would be part of the reason for affirming the decision under review.  The explanatory memorandum to the bill which introduced s 424AA explains that this section provides a new discretion for the Tribunal to orally give information and invite an applicant to comment on or respond to the information at the time that the applicant is appearing before the Tribunal in response to an invitation issued under s 425. This discretion is meant to complement the Tribunal’s existing obligation under s 424A in that if the Tribunal does not orally give information and seek comments or a response from an applicant under s 424AA, it must do so in writing under s 424A. However, if the Tribunal does give clear particulars of the information and seek comments or a response from an applicant under s 424AA, it is not required to give the particulars under s 424A: SZLQD v Minister for Immigration and Citizenship [2008] FCA 739.

11                  Moreover, the exclusions contained in s 424A(3) apply with equal force to s 424AA, therefore the Tribunal is not compelled to give an applicant any particulars of country information which it intends to rely on during the hearing nor information that the applicant gave for the purposes of the application for review: see s 424A(3) and SZLXI v Minister for Immigration and Citizenship (2008) 104 ALD 589; [2008] FCA 1270 at [29]–[30];.  Such an inference is supported by the collective use of the term ‘information’ in s 424A(2A) of the Act (which applies to both ss 424A and 424AA), as such use implies uniformity of meaning.  Therefore, the Court considers that what is not ‘information’ for the purposes of s 424A(1) of the Act is also not ‘information’ for the purposes of s 424A(1): SZLXI at [27].

12                  The Federal Magistrate found that the Tribunal’s account of what occurred during the hearing does not indicate that the Tribunal sought to rely on the procedure under s 424AA to put information that would be the reason or part of the reason for affirming the decision under review to the appellant in the course of the hearing so as to give rise to the obligation under s 424AA(b)(v) to adjourn the review if the Tribunal considered that the appellant reasonably needed additional time to comment or respond to the information. I agree with this assessment.

13                  The particulars in the amended application indicate that the appellant contends he requested time to provide a translated copy of a newspaper and further documents, including documents relating to his role in the BJP, and that he was not given that opportunity and that this was a failure to comply with s 424AA(b)(iv). The Federal Magistrate was correct when he found that these are not circumstances in which the provisions of s 424AA come into play. Section 424AA(b)(iv) operates where the Tribunal orally gives an appellant particulars of information it considers would be the reason, or part of the reason, for affirming the decision under review. The Tribunal did not rely on such information for the purposes of s 424 AA, which has the same meaning as information for purposes of s 424A. Therefore there was no requirement to disclose orally to the appellant particulars of such information and therefore no requirement that the appellant be given an opportunity to respond.

14                  Moreover, the Federal Magistrate was correct when stating that there was nothing in the material before the Court below to indicate that the appellant had sought additional time to provide a translation of the newspaper article or further documents which would have had to have been considered by the Tribunal.  It is for the appellant to make out his case before the Tribunal and the Tribunal does not have any duty to make further inquiries: Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12; NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528 at [18]–[21].

15                  In addition, the Tribunal accepted the appellant’s contention that he had been attacked at the bus stop in 2003 and that this had been reported in the newspaper. However, the Tribunal did not accept, for reasons which it gave, that the attackers were motivated for a Convention reason. The Federal Magistrate correctly found that the Tribunal's findings were open to it and thus no jurisdictional error can be established.

16                  The appellant raised the question of procedural fairness in his written submissions but did not raise the matter as a ground of appeal. The procedural fairness point is said to arise by the Tribunal making factual findings contrary to the appellant’s claims. No issue of procedural fairness arises from the failure to accept evidence raised by the appellant in the circumstances of this review. The same applies to a claim made in the appellant’s written submission that the Tribunal did not consider the appellant’s argument that his life would be under threat. The Tribunal considered that argument but did not accept it. It found that he would not be persecuted, on account of his political opinion if returned to India.

17                  The appellant has not raised any new grounds in this appeal. In fact, the notice of appeal, in so far as it alleges any jurisdictional error in the Tribunal or appeallable error in the Court below, only alleges unstated legal errors attributable to the Tribunal. The Federal Magistrate carefully considered the Tribunal’s decision, and in my view correctly found that the Tribunal’s decision did not involve a jurisdictional error.

18                  For the above reasons, the appeal is dismissed.

Associate:

Dated:         27 February 2009