FEDERAL COURT OF AUSTRALIA

SZMWU v Minister for Immigration and Citizenship [2009] FCA 1375

SZMWU and SZMWV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1078 of 2009

MCKERRACHER J

24 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants are to pay the costs of the first respondent, 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

INTRODUCTION

1                     The appellants are husband and wife.  They are citizens of India who arrived in Australia on 18 February 2008.  On 28 March 2008 the appellants lodged an application for protection visas with the Department of Immigration and Citizenship (the Department).  A delegate of the first respondent refused the application on 27 May 2008.  On 10 June 2008 the appellants applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision.  The Tribunal affirmed the decision and the appellants sought review in the Federal Magistrates Court. 

2                     This is an appeal against the judgment of the Federal Magistrate delivered on 9 September 2009 (SZMWU & Anor v Minister for Immigration & Anor [2009] FMCA 842).  By that decision her Honour dismissed the application for judicial review of the Tribunal given on 11 September 2008.  

THE APPELLANT’S CLAIMS

3                     The first-named appellant (the appellant) claimed to have a well-founded fear of persecution because of her political opinion.  The second-named appellant applied on the basis of his membership of the appellant’s family unit. 

4                     The appellant claimed that she was involved in the activities of the All India Student Federation (the Federation), the student federation of the Communist Party of India (Marxist) (CPI(M)).  

5                     In 2002 she was invited by the CPI(M) to join the Democratic Youth Federation of India. 

6                     In 2005 she was invited by the CPI(M) to contest the local elections.  She stated that she declined and as a result the CPI(M) did not invite her to continue her party activities and she ceased her involvement with the CPI(M).  She claimed that later in 2005 she was invited to join the All India Congress Party (the Congress Party), however she refused to join them.  She claimed that the CPI(M) started to suspect that she was a supporter of the Congress Party.  She further claimed that after the CPI(M) won the Kerala state election she obtained a passport to leave India as CPI(M) supporters were harassing her mentally and physically whenever she left her house.

7                     The appellant claimed that in September 2007 she was approached by the ‘Bharathiya Janatha Party’ (BJP) representatives who asked her to join the party.  She stated that she also refused this invitation and that, again, the CPI(M) thought that she had become a supporter of the BJP.  She claimed that she received threatening phone calls from CPI(M) supporters and that the police took no action in response to her complaint as the CPI(M) was in power.  She stated that she went into hiding in Cannore (at least this is the spelling of the location as it appears in the documents). 

8                     However, she feared for safety and returned to her village, keeping a low profile until she left for Australia.

9                     The appellant also said she would face adverse harm and attention if she was returned to her home town because of her former active membership.  She claimed she could not be relocated to another part of India as she can not speak the Hindi language and had never lived or had any connection with another part of India. 

BEFORE THE TRIBUNAL

10                  The Tribunal accepted that the appellant became a member of the Democratic Youth Wing of the CPI(M) in 2002 and that she was actively involved in its activities.  It also accepted that after she declined to contest the local elections, this gradually sidelined her from party-related activities with which she had previously been involved.  The Tribunal accepted that CPI(M) members and supporters were displeased with her.  It also accepted that CPI(M) members and supporters  taunted her, spoke in unfriendly tones towards her and that low level verbal threats were made.  

11                  However, the Tribunal did not accept that this adverse treatment continued over the period from 2005 to 2008 and did not accept that the treatment amounted to serious harm.  

12                  The Tribunal formed the view that the appellant had exaggerated the treatment by her former political associates to enhance her claims.  In making this finding the Tribunal noted that, despite the alleged threats, she remained living in the family home from September 2005 until August 2007, when she married.  It noted that she moved only six kilometres from the family home.  The Tribunal thought it implausible that she would have remained in the family home and in the local area as she claimed.  The Tribunal further noted that there was no credible evidence before it that CPI(M) members were aware that the appellant was in Cannore (sic), some 300 kilometres from her home area, or that they communicated with her host while she was there.  The Tribunal formed the view that the appellant herself did not view the threats as serious.

13                  The Tribunal accepted that the appellant was invited to join the Congress Party and BJP and declined to do so but found it implausible that CPI(M) supporters were motivated to threaten and harm the appellant because they believed mistakenly that she supported those parties.  The Tribunal did not accept that CPI(M) supporters had maintained an adverse interest in her because they suspected that she had transferred her allegiance to any other party.  The Tribunal further did not accept that the appellant approached the police for protection as her evidence in this regard was vague and implausible.  

14                  The Tribunal concluded that the appellant had not suffered any serious harm amounting to persecution for any Convention related reason.

THE FEDERAL MAGISTRATES COURT

15                  Before the Federal Magistrate the appellant claimed that:

1.                  The Tribunal did not sufficiently deal with her claim and did not give her an opportunity to obtain more evidence from India in order to substantiate her claims after the hearing.

2.                  The Tribunal failed to invite her to a second hearing and did not give her an opportunity to make written comments on adverse information contained in the Tribunal decision.

3.                  The Tribunal breached s 424A of the Migration Act 1958 (Cth) (the Act)

16                  The learned Federal Magistrate stated that it was apparent that the Tribunal not only explored the appellant’s claims with her at some length but that it dealt with the whole of her claims in its findings and reasons and noted that the appellant was seeking impermissible merits review of the Tribunal’s findings.  

17                  Her Honour also noted that there was no obligation on the Tribunal to provide the appellant with an opportunity to provide more evidence after the hearing and was satisfied that the appellant had not sought the opportunity to put further evidence from India before the Tribunal.  Therefore, her Honour also found that there was no obligation on the Tribunal to provide a second hearing and was also satisfied that it had not been established that the Tribunal had failed to fulfil its obligation under s 425 of the Act to raise dispositive issues with the appellant.  Her Honour also found that this was not a case in which new issues arose such that a second hearing was necessary.

18                  The learned Federal Magistrate stated that an issue arose as to whether the Tribunal was under any obligation to put to the appellant the content of the visitor visa applications completed by the appellant and her husband.  Her Honour found that the Tribunal proceeded on the basis that the importance of any information contained in the visitor visa applications could only be assessed after the appellant had given evidence.  Her Honour noted that the Tribunal questioned the appellant about the circumstances surrounding the completion of the visitor visa application and found that her answers fell within the exception to s 424A(1) contained in s 424A(3)(b) of the Act as information that the appellant gave for the purpose of the application for review.  Her Honour found that the evidence relied on and considered dispositively relevant by the Tribunal was the evidence given by the appellant at the hearing as distinct from the content of the visitor visa applications.  Her Honour held that in circumstances where the appellant denied knowledge of the details and information contained in the visitor visa application, it was apparent, logical and reasonable that the Tribunal formed the view that it would not be appropriate to use the information in that application as the reason or part of the reason for affirming the decision under review.  Her Honour found that the information in the visitor visa application did not form part of the reasoning process.  It was not information that the Tribunal considered would be part of the reason for its decision.  Therefore the obligation under s 424A(1) of the Act was not enlivened.

19                  Having found that no jurisdictional error had been established, her Honour therefore dismissed the application. 

GROUNDS OF APPEAL

20                  The notice of appeal raises the following grounds:

1.         Jurisdictional error

2.         Breached of natural Justice

3.         Breached of section 424A of the Migration Act

21                  In oral submissions before me, neither of the appellants sought to expansively develop the grounds of appeal.  The appellant contended that she would be at risk in returning to India but did not expand upon the nature of the risk.  She also asked the Court to consider permitting her to stay for a period of time (perhaps a year) until the next election, if her ‘case was lost’. 

ANALYSIS

Ground 1 – Jurisdictional error

22                  The appellant has not provided any particulars or evidence in support of this ground.  The Federal Magistrate found that the Tribunal’s findings were open to it on the material before it, for the reasons which it gave and that no jurisdictional error had been established in the Tribunal’s approach to the appellant’s claims.  The Tribunal had accepted a number of the appellant’s claims including that she was an active member of the Democratic Youth Wing of the CPI(M); that after she declined to contest the local elections she was gradually sidelined from party-related activities; that CPI(M) members and supporters taunted her, spoke in unfriendly tones towards her; and that low level verbal threats were made.  However, it did not accept that this adverse treatment continued over the period from 2005 to 2008 and did not accept that the treatment amounted to serious harm.  The Tribunal found that she had exaggerated her treatment by her former political associates to enhance her claims; it was implausible that that she would have remained in the family home and in the local area if she feared harm as claimed; it was implausible that CPI(M) supporters were motivated to threaten and harm her because they believed mistakenly that she supported those parties; and she had not suffered any serious harm amounting to persecution for any Convention related reason.

23                  The Tribunal identified the appellant’s claims and extensively discussed those claims and the concerns it had about her evidence with her at the hearing.  Its decision was based on a careful and reasoned analysis of the appellant’s oral evidence and written statement.  Its findings were open to it on the evidence before it for the reasons it gave.  Further, the Tribunal correctly set out the law at the start of its reasons for decision and correctly applied that law to its findings.  

24                  Ground 1 discloses no error.  This ground will be dismissed.

Ground 2 – Breach of natural justice 

25                  Section 422B of the Act provides that the division (Div 4 of the Act) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.  Broadly speaking, this entails inviting the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 425), giving the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review, ensuring as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review, and inviting the applicant to comment on or respond to it (s 424A).  This is subject to a number of exceptions which are discussed below.

26                  In relation to s 425, if the Tribunal takes no steps to identify the issues which it considers dispositive or determinative, an applicant is entitled to assume that the issues that the delegate considered dispositive or determinative are the issues arising in relation to the decision under review: SZBEL v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2006) 228 CLR 152.  The Tribunal will have breached s 425 where it fails to notify an applicant of the determinative issues arising in relation to the decision under review: SZBEL.

27                  Her Honour was satisfied that the Tribunal complied with its obligations under s 425 and was satisfied that the appellant was made aware of the dispositive issues.  Her Honour also found that there was no obligation on the Tribunal to provide a second hearing as it could not be said that new issues arose such that a second hearing was necessary.  In my view her Honour was correct in this regard.  The Tribunal’s discussions with the appellant clearly identify the dispositive issues, giving her an opportunity to comment and to present her arguments and evidence.

Ground 3 – Breach of s 424A

28                  Section 424A(1) requires the Tribunal to provide an applicant with, in a way it deems appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.  Section 424A(3)(b) provides an exemption to the obligation where the information was given by an applicant for the purposes of the review.  In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [23] Finn and Stone JJ identified two relevant requirements contained in s 424A(1)(a).  First, the Tribunal must possess ‘information’ and second, the Tribunal must consider that the information ‘would be the reason, or part of the reason’ for affirming the decision under review.  The information required to be provided to an applicant under s 424A(1) does not extend to the Tribunal’s subjective thought process of appraisals of evidence before it, including disbelief of an applicant’s evidence: SZBYR v Minister for Immigration and Multicultural and Indigenous Affairs [2007] 81 ALJR 1190.  

29                  Her Honour found that an issue arose as to whether the Tribunal was under any obligation to put to the appellant the content of the visitor visa applications completed by the appellant and her husband.  Her Honour found that the Tribunal proceeded on the basis that the importance of any information contained in the visitor visa applications could only be assessed after the appellant had given evidence.  Her Honour noted that the Tribunal questioned the appellant about the circumstances surrounding the completion of the visitor visa application.  The appellant gave evidence about when she obtained the visa and which residential address was provided by her in the application for the visitor visa.  The Tribunal found that the appellant’s evidence about the timing of the visit to Cannore (sic) in relation to the plan to travel to Australia and the preparation of the paperwork for the visas was inconsistent.  As a result, it did not accept that she and her husband actually went to Cannore (sic) for the purpose of their safety.  Her Honour found that her answers fell within the exception to s 424A(1) contained in s 424A(3)(b) as information that the appellant herself had given for the purpose of the application for review.  Her Honour found that the evidence relied on, and considered dispositively relevant, by the Tribunal was the evidence given by the appellant at the hearing as distinct from the content of the visitor visa applications. 

30                  Her Honour held that in circumstances where the appellant denied knowledge of the details and information contained in the visitor visa application, it was apparent and both logical and reasonable that the Tribunal formed the view that it would not be appropriate to use the information in that application as the reason or part of the reason for affirming the decision under review.  Her Honour concluded that it was apparent from the Tribunal’s decision record that the information contained in the visitor visa application was not information that the Tribunal considered would be part of the reason for its decision, and that the obligation under s 424A(1) of the Act was not enlivened.

31                  In my view, no jurisdictional error can be discerned in the approach taken by her Honour.  As found by her Honour, the Tribunal decision indicates that it relied on the evidence given by the appellant during the course of the Tribunal hearing, and not at all on any of the content contained in the visitor visa application.  The evidence given by the appellant is excluded from the obligation contained in s 424A(1) of the Act by s 424A(3)(b).

CONCLUSION

32                  The appeal will be dismissed.  The appellants are to pay the costs of the first respondent, to be taxed if not agreed. 

Associate:

Dated:         24 November 2009