SZCFI v Minister for Immigration and Multicultural Affairs

[2006] FCA 1013

FEDERAL COURT OF AUSTRALIA

SZCFI v Minister for Immigration & Multicultural Affairs [2006] FCA 1013

SZCFI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR

NSD 611 OF 2006

EMMETT J
1 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 611 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCFI
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	1 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed,

2.the appellant pay the first respondent’s costs in the sum of $1,800.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 611 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCFI
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

EMMETT J

DATE:

1 AUGUST 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. I have before me an appeal from orders made by the Federal Magistrates Court of Australia, dismissing an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (‘the Tribunal’).  The appellant is a citizen of India.  He arrived with his wife in Australia on 25 January 2003.  On the 24 February 2003, they lodged an application for protection (Class XA) visas under the Migration Act 1958 (Cth) (‘the Act’). On 4 March 2003, a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’), refused to grant protection visas.

2. On 1 April 2003, the appellant and his wife applied to the Tribunal for review of that decision.  On 6 November 2003, the Tribunal affirmed the decision not to grant protection visas.  The reasons for that decision were handed down on 3 December 2003.  The appellant and his wife then commenced a proceeding in the Federal Magistrates Court seeking Constitutional writ relief in respect of the Tribunal’s decision.  The proceeding came on for hearing before Driver FM on 8 March 2006, when his Honour ordered that the application be dismissed and ordered the appellant and his wife to pay the Minister’s costs in the sum of $4,250. 

3. On 24 March 2006, the appellant filed a notice of appeal to the Federal Court of Australia.  The notice of appeal was expressed to be an appeal from a judgment of Scarlett FM.  This is probably because the appellant used a precedent that he did not change adequately.  That factor itself suggests that the grounds of appeal may have no real bearing on the issue. 

4. It is by no means clear what grounds of review were before the Federal Magistrates Court.  An amended application, filed on 6 January 2005, asserted that the Tribunal failed to take into account a relevant consideration when assessing whether the Minister’s delegate raised reasonable grounds for not granting a protection visa. As particulars of that assertion, the amended application said that the Tribunal did not properly consider the appellant’s chance of persecution. The amended application also said that the Tribunal failed to consider documentary evidence in the way required by the Act. The amended application also said that the Tribunal’s conclusion was not based upon reasoning that provided a rational or logical foundation. The particulars that appear in the amended application assert that the Tribunal did not provide the appellant with adequate particulars of independent information or an adequate opportunity to respond to the substance of that information. Finally, the amended application said that the appellant did not have an opportunity to attend the Tribunal because he was not informed of the Tribunal hearing properly. In that regard, the amended application asserts that the appellant provided a medical certificate to support an adjournment application and that the Tribunal did not properly consider that medical certificate.

5. It is necessary to say something about the invitation to a hearing before the Tribunal, in the light of those complaints to the Federal Magistrates Court.  The appellant and his wife were represented at all times by a migration agent.  The migration agent was involved in a number of adjournment applications.  On 5 September 2003, the Tribunal wrote to the appellant at the address provided by him, telling him that the Tribunal had considered all the material before it, but was unable to make a favourable decision on that information alone.  The Tribunal invited the appellant and his wife to give oral evidence at a hearing on 27 October 2003. 

6. The appellants informed the Tribunal, on 16 October 2003, that they wished to take up that invitation, but on 26 October 2003 sent a facsimile communication to the Tribunal requesting a postponement of the hearing for medical reasons.  A medical certificate stated that the appellant would be available for work on 28 October 2003.  On 27 October 2003, the Tribunal wrote to the appellant and to the migration agent, inviting the appellant to a hearing on 29 October 2003.  On the same day, the migration agent informed the Tribunal officer by telephone that that would be fine.  A Tribunal officer rang the appellant on 28 October 2003 to confirm that he would be attending the hearing on 29 October 2003.  The appellant indicated that he was having transport problems and was not feeling well enough to rely on public transport.  The Tribunal officer then informed the migration agent that a further medical certificate would be required. 

7. On 29 October 2003, the Tribunal wrote to the appellant and to the migration agent offering a hearing on 5 November 2003.  The migration agent rang the Tribunal on 29 October 2003, to confirm that the appellant would attend that hearing.  Subsequently, the migration agent wrote to the Tribunal saying that the appellant had been ill on 29 October 2005.  On 5 November 2003, the migration agent rang the Tribunal again and said that the appellant was having car trouble and could not come to the hearing.  A request for a further postponement of the hearing was declined by the Tribunal. 

8. Having regard to the history that I have just outlined, the Tribunal was not satisfied as to the genuineness of the appellant’s reasons for requesting a further postponement.  In its reasons the Tribunal recorded that, by its letters of 5 September 2003, 27 October 2003 and 29 October 2003, the appellant was informed that if he did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on his case without further notice.  On the day fixed, a Tribunal officer rang the appellant again on the mobile number provided but the telephone was switched off.  In those circumstances, the Tribunal considered that it was appropriate to make a decision without affording the appellant a further opportunity to appear. 

9. The appellant’s application for a protection visa was prepared with the assistance of his migration agent.  In it, he claimed that he was from Ahmedabad, in the state of Gujarat, in India, and that he was an active and well-known supporter of the Congress Party.  He made claims of having been taken to court and questioned about his involvement with the Congress Party and financial transactions.  He asserted that, on one occasion, he and his wife were leaving their office when they were confronted by thugs.  The appellant was chased and fell unconscious.  The application also asserted that, while the appellant was in hospital, he was secretly visited by a person who threatened that he would be killed if he gave evidence against them.  The claim was that that person feared that the appellant would give the attacker’s names to the police when they came to take his evidence.  The appellant claimed that he was continuously harassed and threatened for that reason.  The claim was that the appellant and his wife fled from their home to stay with the appellant’s aunt, but they could not escape and, therefore, they left India, having obtained an Australian visa. 

10. In his brief written submission to the Tribunal, the appellant reiterated those claims.  In its reasons, the Tribunal observed that the appellant had resided at a single address in Ahmedabad from 1965 to January 2003, when he departed for Australia.  It observed that he had been the owner of a business from 1989 to January 2003 and that his parents remained in India.  The Tribunal was satisfied that the appellant and his wife are nationals of India.  However, the Tribunal observed that the appellant had provided no documentary evidence of his claimed links with the Congress Party, nor any evidence that he was investigated by Indian authorities in relation to allegations made about him, nor that he was assaulted and, as a result, hospitalised.  The Tribunal observed that, some months previously, the appellant stated that he would be submitting medical and police reports but had not done so. 

11. The Tribunal considered that on the limited information provided by the appellant, the essential and significant reason for the claimed threats to him were not for reason of his political opinion but because criminals wanted to stop his giving incriminating information about them to the police.  The Tribunal was, therefore, unable to identify any Convention reason for the harm that the appellant claimed to fear. 

12. In addition, the Tribunal had regard to the fact that the appellant had provided no details as to when any of the events occurred and, in particular, did not state why, when the appellant and his wife fled their home and went to stay with the appellant's aunt, that did not resolve their problems. Given the brevity and vagueness of the information submitted by the appellant, the Tribunal was unable to establish the relevant facts and was, therefore, not satisfied on the evidence before it that the appellant has a well-founded fear of persecution, within the meaning of the Convention, if he returned to India. 

13. In the light of those reasons, there is no substance at all in the assertion in the amended application that the Tribunal did not properly consider the chance of the appellant’s persecution if he returned to India, based upon his membership of the Congress Party.  The Tribunal considered the question but concluded that there was insufficient material before it to be satisfied that there was a chance that the appellant would be persecuted by reason of his association with the Congress Party. 

14. The assertion, in the amended application, that the appellant had sufficient documentary evidence that was overlooked, ignores the fact that the appellant, in fact, provided no documentary evidence to the Tribunal. There is no substance in the assertion that the Tribunal failed to consider the appellant's documentary evidence in the way required by the Act. The Tribunal’s reasons do not indicate that independent information concerning India played any part in the Tribunal’s decision. There is, therefore, no substance in the assertion that the Tribunal did not afford the appellant an adequate opportunity to respond to such information.

15. I have already outlined the attempts made by the Tribunal to give the appellant the opportunity of being heard.  In the absence of any evidence from the appellant before the Federal Magistrates Court, there is no reason to conclude that the appellant was not able to attend any of the hearings if he had chosen to.  The Federal Magistrates Court adopted the submissions of the Minister for rejecting the grounds asserted in the amended application. 

16. The notice of appeal to this Court raises two grounds:

    (1)the Federal Magistrate erred by not considering the merits of the appellant's application, as there were numbers of errors made by the Tribunal, including the breach of the notification procedure;

    (2)the Federal Magistrate erred in law by refusing to remit the application back to the Tribunal while knowing that the Tribunal had made several unfair errors, including denying natural justice and procedural fairness, which led to the application being refused.

17. There is no substance whatsoever in those grounds.  Driver FM clearly considered the application and, while his Honour adopted the submissions of the Minister in refusing the application, there is no reason to doubt that his Honour had considered those submissions further.  Having regard to his Honour’s conclusions, it is quite clear that his Honour was of the view that the Tribunal had made no error.  In particular, his Honour was of the view that the Tribunal had not denied the appellant natural justice. 

18. The second ground is totally without substance.  As I have said, the notice of appeal appears to have been adapted from another proceeding without thinking. 

19. There is nothing in the appeal and it should be dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       7 August 2006

The Appellant appeared in person.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	1 August 2006
Date of Judgment:	1 August 2006