SZDGV v Minister for Immigration and Multicultural Affairs

[2006] FCA 1082

FEDERAL COURT OF AUSTRALIA

SZDGV v Minister for Immigration and Multicultural Affairs [2006] FCA 1082

MIGRATION – appeal from a decision of a Federal Magistrate – no point of principle

Held: Appeal dismissed

Migration Act 1958 (Cth) ss 424A, 425, 425A, 441A, 426A

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA 24 cited

SZDGV AND SZDGW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 783 OF 2006

COLLIER J
18 AUGUST 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD 783 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDGV
First Appellant

SZDGW
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	18 AUGUST 2006
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.SZDGW be formally joined as second appellant.

2.The Refugee Review Tribunal be formally joined as second respondent.

3.The appeal be dismissed.

4.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.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD 783 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDGV
First Appellant

SZDGW
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	18 AUGUST 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of Barnes FM of 6 April 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 23 February 2004 and handed down on 16 March 2004. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) made on 6 November 2003 to refuse to grant a protection visa to the appellant and his wife.

2. The appellant and his wife are citizens of India. They arrived in Australia on 7 August 2003 and applied for a protection visa on 2 September 2003. On 1 December 2003 the appellant and his wife applied to the Refugee Review Tribunal for a review of the decision of the delegate of the Minister.

3. In the protection visa application, and the matters before the Tribunal and Barnes FM, the wife, SZDGW, was an applicant. SZDGW also signed the notice of appeal filed 26 April 2006 which was before me. However at the hearing before me, it was pointed out that the appellant was listed only as SZDGV, the husband. In the case before me the first respondent consented to the wife being formally joined as an appellant, to avoid the circumstance that, should the husband succeed in the matter before me, his application would be remitted back to the Tribunal and the wife’s application would not. Accordingly, I order that SZDGW be formally joined as a second appellant in this matter.

4. Further, I note that the original respondent to this appeal is the Minister for Immigration and Multicultural Affairs. Following the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA 24, I order that the Refugee Review Tribunal be joined as second respondent to these proceedings.

   The Tribunal’s decision

5. No specific Refugees Convention claims were made by or on behalf of the appellant wife who relied on membership of the appellant husband’s family unit. In the protection visa application and before the Tribunal the appellant husband claimed a well-founded fear of persecution on grounds of religion and political opinion. He claimed that he was a member of the Bharatiya Janata Party (‘BJP’), that he supported victims of the Gujarat train massacre and due to such support was persecuted by Muslim political parties and extremist Muslims. The appellant husband claimed to have suffered property damage, to have been attacked resulting in hospitalisation and to have received threats.

6. On 23 December 2003 the Tribunal invited the appellants to a hearing and on 13 February 2004 the Tribunal was advised in writing that the appellants did not wish to attend. The appellants did not attend the hearing and the Tribunal proceeded to determine the matter on the evidence available to it in their absence as permitted by s 426A Migration Act 1958 (Cth) (‘the Act’).

7. The Tribunal detailed a number of issues relevant to the evidence before it, in particular:

   ·     limited evidence and details as to membership or activities in the BJP

   ·     vagueness of claims concerning harm allegedly experienced at the hands of Muslim extremists

   ·     absence of detail as to threats to the life of the appellant husband

   ·     absence of detail as to the claim that the appellant husband was beaten up in  his shop in 2002.

8. The Tribunal found that the evidence before it was vague and lacking in detail in important respects. It was unable to establish the relevant facts and consequently could not be satisfied the appellant husband was a member of the BJP, that he was ever attacked by Muslim extremists or that he and his family members were ever threatened by them. It found the appellants did not have a well-founded fear of persecution in India. The Tribunal affirmed the decision not to grant protection visas.

   The Federal Magistrates Court

9. Before Barnes FM, the appellants claimed that:

   ·     the Tribunal did not properly assess the chance of persecution based on membership of a political party

   ·     the decision was made in bad faith

   ·     the Tribunal overlooked documentary evidence

   · the Tribunal did not observe the Act properly

   ·     the Tribunal failed to consider documentary evidence in the proper way

   ·     the Tribunal did not provide adequate particulars of independent information and denied the appellants an opportunity to respond to such information

   ·     there was denial of procedural fairness in that the hearing invitation letter was not properly served.

10. Barnes FM found that the Tribunal understood and considered the appellants’ claims insofar as possible on the material before it and that there was no basis for the allegation of bad faith. The Federal Magistrate noted that merits review was not available in that court. Her Honour found that the Tribunal need not have regard to documents that were not placed before it at the time of the decision. Although the appellants annexed a number of documents to a further amended application, the Federal Magistrates Court did not have jurisdiction to determine whether the appellant husband was a refugee nor did the documents assist in determining whether the Tribunal made a jurisdictional error. Her Honour found no material to support the contention of irrationality or illogicality in the Tribunal’s decision and any findings of vagueness and lack of detail were open to the Tribunal on the materials before.

11. The Federal Magistrate considered the ground regarding procedural fairness but found that no failure to comply with the procedures of the Act was established, nor was there a failure to provide the proper notification of the Tribunal hearing. The Tribunal properly invited the appellant to a hearing by its letter dated 23 December 2003 consistent with its obligations under s 425 and s 425A of the Act, and the invitation was given pursuant to one of the methods specified in s 441A of the Act. Although there was evidence of an envelope being returned to the Tribunal which was addressed to the appellants’ home address and mailing address, the Tribunal had received a completed response to hearing invitation indicating the appellants did not wish to attend the hearing. Barnes FM was of the view that the Tribunal did not breach statutory obligations or err in deciding the application without taking oral evidence when the appellants declined the invitation to the hearing.

12. The Federal Magistrate addressed the remaining grounds and found that the Tribunal did not refer to any independent information in its reasons for decision and that there was no jurisdictional error on the part of Tribunal arising from the appellants’ lack of English ability. Her Honour dismissed the application.

    Appeal to this Court

13. The notice of appeal to this Court raised the following grounds:

    ·     the Federal Magistrate failed to find jurisdictional error in the Tribunal’s decision

    ·     the Tribunal erred in adopting ‘an unduly approach to well-founded fear as the Tribunal was required to assess harm from the perspective of the persecutor’

    ·     the Tribunal did not properly consider the appellants’ claims, including ignoring the appellants’ evidence submitted with the protection visa application

    ·     there was denial of procedural fairness as the Tribunal adopted a harsh approach and did not give importance to the relevant issues

    ·     the appellants were not aware of the consequences of a failure to attend the Tribunal hearing.

14. At the hearing the appellant husband made the following submissions:

    ·     he was in Emerald when the Tribunal sent the letter about the hearing and his migration agent did not advise him that he had received a letter from the Tribunal until a week after the hearing had taken place

    ·     he is able to get proof of his membership of the BJP from India on BJP letterhead

    ·     he did not know what was in the documents when he was asked to sign the Tribunal documents.

15. The first respondent, by way of both oral and written submissions, asserted the following:

    ·     no error is disclosed in the approach taken by the Federal Magistrate or the decision reached by the Federal Magistrate in dismissing the further amended application

    ·     the matters noted by the Tribunal were matters to which the Tribunal, as the arbiter of facts, can have regard

    ·     there is no basis on which the appellant husband can assert that the Tribunal ignored his evidence submitted to the Department with the protection visa application. No jurisdictional error is disclosed

    ·     the Federal Magistrate dealt with the claim by the appellants that the Tribunal adopted a harsh approach and did not give importance to the real issues relevant to the appellants’ case. No error is disclosed in the way the Federal Magistrate dealt with this.

16. The first respondent also drew the Court’s attention to the issue of whether there had been a failure to comply with s 424A(1) of the Act. The first respondent submitted that there had not been a failure to comply with this section because the proper construction of the Tribunal’s reasons is that the Tribunal was simply not satisfied of the relevant matters.

17. On the facts of this case, no error in the decision of Barnes FM is evident. In particular, I note:

    ·     No particulars or other explanation are provided by the appellants as to how the decision of the Tribunal contains jurisdictional error.

    ·     It was appropriate in the circumstances for the Tribunal to deal with the case (including the evidence) before it, in the absence of the appellants.

    ·     The appellants had appointed a migration agent to act on their behalf in relation to communicating with the Tribunal, and it was reasonable for the Tribunal to accept a communication from the migration agent to the effect that the appellants did not wish to attend the hearing.

    · Although the appellants state that they were unaware of the consequences of failure to attend the hearing, under the Act the substantive consequence is that the hearing can occur without the presence of the applicants: s 426A. This consequence was communicated to the appellants by the Tribunal in its letter of 23 December 2003. The appellants have not indicated any other consequences which would be relevant. If the appellants expected that the hearing would not take place in their absence, in the absence of any other communication from them seeking a rehearing, such an expectation is unreasonable.

    ·     Although the appellant husband claims that he is now able to produce a letter proving his membership of the BJP, the time to produce a letter of this nature, which goes to an issue of fact, was at or prior to the hearing before the Tribunal. If the appellants had required more time to produce this evidence, and accordingly sought a postponement of the hearing, an application to that effect could have been made to the Tribunal.

    ·     Although the appellant husband claimed that he did not know what was in the ‘Tribunal documents’, I note again that a migration agent had been appointed to assist both appellants. There is no evidence before me that the appellants were mislead by the migration agent they had appointed.

18. The appellants claim that the Tribunal did not properly consider their claims, including ignoring their evidence submitted with the protection visa application, and that the Tribunal had adopted an unduly harsh approach to their case. In my view, there is no evidence of this in the decision of the Tribunal. Rather, the reasons for the decision indicate that the case submitted by the appellants to the Tribunal was vague and lacking in the necessary detail to persuade the Tribunal that the appellants are persons to whom Australia owes protection obligations within the Refugees Convention and the Refugees Protocol. Clearly, it is for the appellants to make a case that they are in need of protection. In my view, this case demonstrates, again, the importance of those in the position of the appellants both explaining their case in as much detail as possible to the Tribunal, and actually appearing at the hearing in order to explain their case and answer any questions the Tribunal may need to ask.

19. In my view the appropriate order is that the appeal be dismissed with costs.

    ORDERS

    1.SZDGW be formally joined as second appellant.

    2.The Refugee Review Tribunal be formally joined as second respondent.

    3.The appeal be dismissed.

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

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

Associate:

Dated:        18 August 2006

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	S Kaur-Bains
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	31 July 2006
Date of Judgment:	18 August 2006