FEDERAL COURT OF AUSTRALIA

SZNMS v Minister for Immigration and Citizenship [2009] FCA 1265

MIGRATION – appeal from Federal Magistrate – no appellable error – appeal dismissed

Migration Act 1958 (Cth), s 424(2) 

Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434

Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109

SZGGD v Minister for Immigration and Citizenship [2009] FCA 1250

SZNAV v Minister for Immigration and Citizenship (2009) 229 FLR 461 

SZNMS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 956 OF 2009

BARKER J

5 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs to be taxed if not agreed.

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

appeal

1                     This is an appeal from a judgment of a Federal Magistrate delivered on 24 August 2009.  The Federal Magistrate dismissed the appellant's application for review of a decision of the Refugee Review Tribunal (Tribunal) dated 20 March 2009.  The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) to refuse the appellant a protection visa.

prior applications

2                     The appellant is a citizen of India and arrived in Australia on 12 August 2008.

3                     On 19 September 2008,  the appellant applied for a protection visa.  On 12 December 2008, the appellant's application was refused by the delegate of the Minister.

4                     On 12 January 2009, the appellant applied to the Tribunal for review of the delegate's decision. By letter dated 12 February 2009, the Tribunal invited the appellant to give evidence and present arguments before it at a hearing on 19 March 2009. The appellant appeared at the hearing and gave evidence on that day.

5                     On 20 March 2009, the Tribunal affirmed the delegate's decision to refuse the appellant a protection visa.

Appellant's claims to refugee status

6                     The harm which the appellant fears is said to be perpetrated by private agents. The appellant claims he is unable or unwilling to avail himself of state protection in India by reason of his political opinion.

7                     In a statement attached to his protection visa application, the appellant claimed:

·                    he owns a farm in the Pilibhit District in India. One of his employees and a citizen of Nepal (who may simply be referred to here as R), died from natural causes in August 2007. R’s brother blamed the appellant for R’s death. R’s brother is a member of the Maowadi group, a terrorist group in Nepal;

·                    upon receiving threats from R’s brother, the appellant approached the police for assistance. The police said they could not help because the person making the threats was "in Nepal, and so and so". He believes the police refused to help because the appellant is a member of the Samajwadi party, the opposition party in his Indian State, Uttar Pradesh;

·                    R’s brother or his associates came to India and attempted to kill the appellant twice: at the end of October 2007 and on 31 December 2007. Both times, the appellant was shot at. After these attacks, the appellant knew he had to leave India;

·                    the appellant did not approach the police about the attacks because he was told that if he did, his family would be targeted as well; and

·                    up until the time he left India, the appellant was still being threatened by R’s brother. They went to his house and warned his family that, if the appellant is in India, they will find and kill him.

Tribunal's findings

8                     The Tribunal's reasoning is found at paragraphs [29] to [36] of the decision record.

9                     The Tribunal accepted that the appellant feared harm from the brother of one of his employees, and that this person was seeking to kill or harm the appellant ([31]). However, in view of the available material, the Tribunal found that whilst there was a real risk of harm to the appellant if he lived in the Pilibhit District of India, the appellant was able to safely relocate to another part of India.  The Tribunal considered it was reasonable for the appellant to relocate because: 

·                    the appellant's difficulties were confined to the Indian District of Pilibhit which is 20 kms from the border of Nepal. By relocating, the appellant could avoid the difficulties he experienced in Pilibhit ([32]); and

·                    although the appellant claimed it was not reasonable for him to relocate within India because his farm and family are in Pilibhit, the Tribunal concluded that the appellant had the "personal circumstances, skills, knowledge, and resources"([33]) to relocate successfully within India.

10                  The Tribunal was also satisfied that reasonable state protection was available to the appellant ([34]).

Decision of the Federal Magistrate

11                  On 21 April 2009, the appellant filed an application with the Federal Magistrates Court, which complained that the Tribunal:

·                    failed to consider that the "applicant satisfies the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision"; and

·                    failed to "take in to account certain relevant considerations or 'integers' central to the applicant's claim".

12                  The Federal Magistrate rejected each of these grounds and dismissed the application.

Appeal to this Court

13                  On 2 September 2009, the appellant lodged his notice of appeal.  In his appeal to this Court, the appellant does not pursue any grounds related to the grounds of review in his application to the Federal Magistrates Court. Rather, the appellant relies on the following new ground not previously agreed:

          The Federal Magistrates Court failed to consider the ground of my appeal such as error of law made by the Tribunal failed to comply with s424 of the Migration Act 1958.

a)       The Invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act:

i)        The invitation did not specify the way in which the additional information may be given.

ii)       The invitation did not specify the period within which the information was to be given. 

[Errors in original]

14                  The appellant has not filed any written submissions or provided any further particulars to support this ground of appeal.

15                  The Minister does not take issue with the raising of this new ground on the appeal but argues it is without substance.

16                  The singular ground alleged in the appellant's notice of appeal replicates a ground that was argued, initially successfully, in SZNAV v Minister for Immigration and Citizenship (2009) 229 FLR 461 before a Federal Magistrate.  However, on appeal before a specially convened bench of three justices of the Full Federal Court in Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109, the decision of the Federal Magistrate was reversed.  The Full Federal Court held in the light of Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434, that an acknowledgment letter was not an invitation to provide the Tribunal with additional information made under s 424(2) of the Migration Act 1958 (Cth) (Act).  Further, though strictly obiter, it was also not capable of being considered an invitation under s 424(2) as it was merely "advice to the respondents about how to ensure that their application is complete".  The Full Court at [25] was also disposed to see the acknowledgement letter as an administrative act preceding the hearing and not issued by the Tribunal for the purpose of “getting” information.

17                  I agree with respect with the findings and observations of the Full Court in this regard.  See also my reasons in SZGGD v Minister for Immigration and Citizenship [2009] FCA 1250 at [21] – [38].

18                  For these reasons the ground must fail.

conclusion and orders

19                  The appellant has not demonstrated any error in the Federal Magistrate’s decision that would lead to the conclusion that the Tribunal erred in a way that affected its jurisdiction. The appeal ought to be dismissed with costs.

20                  The Court therefore orders:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs to be taxed if not agreed.

NSD 956 of 2009

Associate:

Dated:         5 November 2009