SZAFB v Minister for Immigration - [2003] FMCA 399

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAFB v MINISTER FOR IMMIGRATION

[2003] FMCA 399

MIGRATION – Review of RRT decision – application for protection visa – where the applicant claims to have a well-founded fear of persecution for imputed political opinion – where the Tribunal made findings on the applicant’s credibility – whether the Tribunal made a jurisdictional error by either ignoring relevant information or relying on irrelevant material – whether the Tribunal made a jurisdictional error by preferring certain country information over oral and written evidence provided by the applicant – whether there was a breach of s.424A – where the Tribunal clearly set out what country information it had relied on in accordance with s.430 – where the information used by the Tribunal was information about a class of persons of which the applicant was a member pursuant to s.424A(3).

Migration Act 1958 (Cth), ss.359A, 424A, 430

Awan v Minister for Immigration [2002] FCA 594
NAHV v Minister for Immigration [2003] FCAFC 102
VHAJ v Minister for Immigration [2003] FCAFC 186
Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380

Applicant:

SZAFB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 216 of 2003

Delivered on:

22 September 2003

Delivered at:

Sydney

Hearing date:

16 September 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr B Level

Solicitors for the Applicant:

Mr J Bharati

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 216 of 2003

SZAFB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India who arrived in Australia on 8 July 2001. On 14 August 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 17 January 2002 a delegate of the Minister refused to grant a protection visa and on 3 February 2002 the applicant applied for review of that decision by the Refugee Review Tribunal. On 30 September 2002 the Tribunal wrote to the applicant advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The applicant was invited to a hearing before the Tribunal which he attended on 29 October 2002. The Tribunal considered the matter and made its decision on 30 December 2002, handing it down on 29 January 2003. The Tribunal affirmed the delegate’s decision not to grant a protection visa.
The applicant’s claim to have a well-founded fear of persecution arose in respect of the convention reason of political or imputed political opinion. The applicant is a Sikh who stated that he had married into a family of Sikh activists from the Punjab. In his claims to the delegate he provided considerable detail about…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FMCA 399
Decision Date: 22 September 2003

CaseChat Overview and Summary

In the case of SZAFB v Minister for Immigration, the applicant sought judicial review of a decision made by the Refugee Review Tribunal (RRT). The applicant, who had been denied refugee status, contested the RRT's reliance on certain country information and the Tribunal's compliance with statutory obligations regarding the disclosure of such information. The central issue before the court was whether the RRT had adequately complied with the requirements of s.430(1) of the Migration Act 1958 (Cth), which mandates that the RRT must record its decisions, the reasons for those decisions, and the findings on any material questions of fact, and refer to the evidence or other material on which the findings were based. Additionally, the court had to determine whether the RRT was required to disclose information that, while relevant to the applicant's claim, was more generally about a class of persons rather than specifically about the applicant.

The court examined the statutory provisions and relevant case law to conclude that the RRT had sufficiently complied with s.430(1). The Tribunal had provided detailed country information, which it relied upon in its decision-making process. The court found that the RRT had fulfilled the requirement to refer to the evidence or other material on which its findings were based. Furthermore, the court found that the exemption under s.424A(3) applied to the information in question. This section excludes from the disclosure requirements information that is not specifically about the applicant or another person but is about a class of persons of which the applicant is a member. The court relied on previous decisions that held country information generally falls within this exemption, as it is relevant only because the applicant belongs to a particular class.

Given the above, the court dismissed the application, holding that the RRT had complied with the statutory obligations and that the exemption applied to the information in question. The court also ordered the applicant to pay the respondent's costs in the sum of $4,250.

Orders

Orders of the court

Application dismissed.

Applicant to pay the respondent’s costs assessed in the sum of $4,250.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondent also pointed to the requirements of s.430(1) which is in the following form:Refugee Review Tribunal to record its decisions etc. (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a)sets out the decision of the Tribunal on the review; an(b)sets out the reasons for the decision; and(c) sets out the findings on any material questions of fact; and(d) refers to the evidence or any other material on which the findings of fact were based. The Tribunal had complied with s.430(1)(d) by setting out on over ten pages the country information that it relied on. There is no evidence, not even a suggestion raised by anything in the court book, that the Tribunal considered other information as well. Finally, and to my mind most effectively, the respondent referred to the exemption found at s.424A(3). The nature of information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member was considered by the Full Bench of the Federal Court in VHAJ v Minister for Immigration [2003] FCAFC 186 where Kenny J at [50] said:“In reaching this conclusion, it is helpful to consider other instances in which a similar question has arisen. One example is country information. It is usual for the Tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant's claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the Tribunal's decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information "just about" a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within par 424A(3)(a) of the Act: see, eg., Tharairasa v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 281 per Carr J; Pannasara v Minister for Immigration & Multicultural Affairs [2001] FCA 570 per Carr, Lindgren and Katz JJ; Akpata v Minister for Immigration & Multicultural Affairs [2001] FCA 402 per O'Loughlin J; Islam v Minister for Immigration & Multicultural Affairs [2001] FCA 430 per RD Nicholson J; Kola v Minister for Immigration & Multicultural Affairs [2001] FCA 630 per Mansfield J; and "W104/00A" v Minister for Immigration & Multicultural Affairs [2001] FCA 771 per Lee J. Contrast VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 ("VEAJ of 2002"), at [36]-[38], and [43] per Gray J.”And at [51]:“These decisions should be contrasted with the decision in Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380 ("Baig"). In Baig, Gray J held that information in Agence France Presse was not "just about" a class of persons of which the applicant or any other person was a member. At [33] his Honour said:Section 424A(1)(a) is expressed in terms of the Tribunal's subjective view: if the Tribunal `considers' that information would be the reason, or a part of the reason, for affirming the decision under review, it is obliged to give the applicant particulars of that information, ensure that the applicant understands why [it is] relevant to the review and invite the applicant to comment on it. Once the Tribunal reached the state of mind that it considered that the Agence France Presse items could be relied on to refute the applicant's claim that he had campaigned in a by-election that took place on 15 April, it was obliged to follow the procedure in s 424A(1). The material did not fall within the exclusion in s 424A(3)(a), because it was not about a class of persons of which the applicant or any other person was a member. It bore specifically upon the question of the applicant's involvement in campaigning in a by-election.”

Ratio Decidendi

Legal Principle Established

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