FEDERAL COURT OF AUSTRALIA

SZNPD v Minister for Immigration and Citizenship

[2009] FCA 1555 

Migration Act 1958 (Cth) s 424A, 424A(3)(a)

SZNPD and SZNPE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 731 of 2009

JESSUP J

24 NOVEMBER 2009

MELBOURNE

THE COURT ORDERS THAT:

1.         The appeals be dismissed.

2.         The appellants pay the costs of the first respondent.

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

1                          This is an appeal from a judgment of the Federal Magistrates Court of Australia, delivered on 1 October 2009, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 April 2009.  The Tribunal affirmed an earlier decision of a delegate of the respondent minister on 3 February 2009 to refuse to grant the appellants protection visas under the Migration Act 1958 (Cth) (“the Act”). 

2                          The appellants, who are husband and wife, are citizens of India who arrived in Australia on 8 October 2008.  They applied for protection visas on 14 November 2008.  The appellant wife’s application was made as a member of her husband’s family and, as such, is wholly dependent on the success of her husband’s application.  It is therefore convenient for present purposes to refer to the appellant husband as “the appellant”.  His wife did not represent herself, and was not present at the hearing of the appeal today, but I am satisfied from the exchanges I had with the appellant himself that she is aware of today’s appeal, and of the fact that her husband will be advancing a case by reference to which her own claims will stand or fall. 

3                          The appellant claims to fear harm in India because of his political involvement with the Bharatiya Janata Party (“the BJP”) and the Congress Party.  He claims to have left the BJP to join the Congress Party and to have been involved in, and to have organised, various demonstrations and other political activities after which he and his family were targeted by the BJP in relation to which they received no assistance from the local authorities.  The appellant claims that, following a recent bomb blast, he was interrogated by police and tortured.  His protection visa application was refused by the delegate of the minister on the basis that his fear of persecution was not well-founded, and that there were significant doubts as to the veracity of his claims.

4                          He took his claims to the Tribunal, but the Tribunal affirmed the decision of the delegate.  A substantial factor in that affirmation was the Tribunal’s rejection of much of the evidence given to it by the appellant himself.  The Tribunal did not consider him to be a witness of truth.  The appellant applied for judicial review of the Tribunal’s decision upon a number of grounds which were dealt with, adversely to him, by the Federal Magistrate in his judgment of 1 October 2009.  His Honour’s reasons were detailed and, apparently, comprehensive.  It is necessary to refer to only one aspect of those reasons, namely that which related to the appellant’s reliance upon section 424A of the Act. 

5                          The information which, according to the appellant, had been used to his disadvantage by the Tribunal, but not properly notified to him under that section, was, on the findings of his Honour below, independent country information.  That is to say, it was information which related generally to events in the place from which the appellant came, and not to the appellant specifically, or to his individual circumstances.  His Honour relied upon section 424A(3)(a) to hold that the section did not apply to information of that kind, and he dismissed so much of the appellant’s application as sought to rely on that section.  In his notice of appeal in this court, dated 7 October 2009, the appellant relies on one ground only.  It is as follows:

The FM failed to find that the tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth) 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(1).

6                          I gave the appellant the opportunity to address me with respect to this single ground of appeal.  He did not do so.  He did not suggest that the Federal Magistrate had been in error to dispose of the section 424A point in the way that his Honour did.  There is nothing which appears, either from the circumstances of the case generally, or from his Honour’s reasons, which would give me any cause to suspect that his Honour may have been in error in the way he disposed of this point.  In the circumstances, it is clear that the single ground in the notice of appeal must be rejected. 

7                          Most of the appellant’s energies in his short submissions made to me this morning were directed to two things.  First, he sought to have me receive a document which he described as a medical record relating to his admission to hospital and similar medical related documents, which, according to him, he had received only in the last month or so.  It seemed to me that, whatever claim he might otherwise have had to the admission of this new evidence, it could have no bearing upon the single ground which he raised in his notice of appeal.  I am fortified in that conclusion because that ground relates entirely to the procedure used by the Tribunal, and it is clear that the documents, which the appellant now sought to put forward, played no part in the proceedings before, or the deliberations of, that Tribunal; neither was it suggested that the Tribunal unfairly declined to admit documents or to consider documents of this kind.

8                          The other main aspect of the appellant’s submissions this morning were to stress that he was suffering from a condition which required medication, that he was more likely to get that medication in Australia, and that, if he were obliged to return to his country of citizenship, he would not be able to carry out hard work in order to earn a living.  These are not considerations which bear upon the only question which was before the Federal Magistrate.  That question was whether the Tribunal had fallen into jurisdictional error in the way it dealt with the appellant’s application for review from the delegate.  Neither are they questions with which this court can have any concern, as the only question raised on an appeal of this kind is whether the judgment below was affected by error.

9                          For these reasons, I propose to dismiss both appeals.

Associate:

Dated:         24 November 2009