SZEEZ v Minister for Immigration and Citizenship

[2007] FCA 1916

FEDERAL COURT OF AUSTRALIA

SZEEZ v Minister for Immigration and Citizenship [2007] FCA 1916

SZEEZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD1761 OF 2007

EMMETT J
22 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1761 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEEZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	22 NOVEMBER 2007
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 $2,600.

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	NSD1761 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEEZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

EMMETT J

DATE:

22 NOVEMBER 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of India and arrived in Australia on 9 September 2003.  On 22 October 2003 he made an application for a protection visa under the Migration Act 1958 (Cth) (the Act). On 6 February 2004 a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), who was then known as the Minister for Immigration and Multicultural and Indigenous Affairs, refused to grant the appellant a protection visa. On 1 March 2004 the appellant applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for review of the decision of the delegate in accordance with the provisions of the Act. On 22 July 2004, the Tribunal notified the appellant of its decision to affirm the decision of the Minister’s delegate.

2. The appellant then commenced a proceeding in the Federal Magistrates Court.  Ultimately after an appeal, the Tribunal’s decision was set aside on 24 February 2006 and the matter was remitted to the Tribunal for reconsideration.  On 27 July 2006 the Tribunal again notified the appellant of its decision to affirm the decision of the delegate.  The Tribunal, in the making of that decision, was differently constituted from when the Tribunal made its original decision. 

3. On 11 August 2006, the appellant commenced a proceeding in the Federal Magistrates Court seeking judicial review of the second decision of the Tribunal.  The appellant filed an amended application on 1 November 2006.  On 14 August 2007, after a hearing on 19 June 2007, the Federal Magistrates Court made orders dismissing the application for judicial review.  On 31 August 2007, the appellant filed a notice of appeal from the orders of the Federal Magistrates Court. 

4. At the hearing of the appeal today, the appellant appeared without legal representation.  Although he is able to communicate in English, quite well, he had the assistance of an interpreter if need be.  The appellant filed written submissions pursuant to directions given by the Court and made brief oral submissions in support of his appeal.  The appellant did not address the limitation on the right of review of the decision of the Tribunal as a privative clause decision and did not adequately come to grips with the question of whether or not there was jurisdictional error on the part of the Tribunal and whether there was an error on the part of the Federal Magistrates Court in failing to find error on the part of the Tribunal.

5. It is desirable that I say something about the decision of the Tribunal and the grounds of review that were relied upon by the appellant.  The appellant claimed that, because of an association with a Sri Lankan friend from college, who was involved with the Liberation Tigers of Tamil Eelam (LTTE), the appellant was arrested and remanded in custody on two occasions, in March 1998 and again in 2001, when he tried to go to Malaysia.  He claimed that he was released on bail on both occasions, but did not comply with the conditions of his bail.  He claimed that the police were looking for him to arrest him in Tamil Nadu before he left India, that he would not be able to obtain bail if he returned and that the Tamil Nadu police had filed false cases against him.

6. He claimed that his friend from college will kill him, because he once informed the police that the friend was in a particular place.  The appellant claimed that the friend asserted that he, the college friend, was responsible both for the death of the appellant’s mother in August 1998 and the killing of the appellant’s eldest son in Calcutta in 1999.  The appellant claimed that his family, relatives and friends hated him because of his association with the college friend.  He claimed that they told him to get out of the house and those members of the ruling party, who lived in his neighbourhood, turned against him because they thought he was involved with the LTTE and with the college friend. 

7. The appellant produced his passport to the Tribunal.  The Tribunal put to the appellant that the fact that he had left India, travelling on a passport in his own name, suggested that he was not of any interest to the Indian authorities at the time of his departure.  The appellant responded, according to the Tribunal’s reasons and findings, that he head been able to do that because of another friend who had helped him.  He said that money had been paid through a familiar officer.  However, the Tribunal preferred information obtained from the Australian Department of Foreign Affairs and Trade that checks at the airports in India are exceedingly thorough and that the airport police cannot be bribed. 

8. While the appellant said that, if money had not been given he would not have been able to come to Australia, the Tribunal preferred the advice of the Australian Department of Foreign Affairs and Trade because the Tribunal considered that to be more likely to be reliable.  The Tribunal did not accept that the appellant would have been able to leave India travelling on a passport in his own name if he had been wanted by the Tamil Nadu police, as he claimed.  The Tribunal, therefore, did not accept that the appellant was of any interest to the Indian authorities at the time he left India. 

9. The Tribunal also referred to a letter purporting to be from a lawyer, which was produced by the appellant.  The letter purported to corroborate the appellant’s evidence that the college friend was responsible for the death of the appellant’s mother.  For reasons that the Tribunal explained, it found it difficult to put weight on the letter from the lawyer.  The Tribunal did not consider that the limited corroboration provided by the letter, outweighed the Tribunal’s concerns with the appellant’s evidence, arising from the fact that he had left India travelling on a passport in his own name.  The Tribunal reaffirmed its conclusion that the appellant would not have been able to leave India travelling on a passport in his own name, as he claimed to have done, if he had the problems he claimed to have as a result of his association with the college friend and the LTTE. 

10. Having regard to the view that the Tribunal formed of the appellant’s credibility, the Tribunal did not accept that he had ever had any association with the LTTE or with the college friend, as he claimed.  The Tribunal, therefore, did not accept that the appellant was of any interest to the authorities at the time he left India.  Since the Tribunal did not accept that the appellant has ever had any association with the so called college friend, or the LTTE, as he claimed, the Tribunal did not accept that charges had been laid against him by reason of that association.  The Tribunal did not accept, on the evidence before it, that there was a real chance that the appellant would be arrested if he returned to India.

11. The appellant also said, at the hearing before the Tribunal, that those members of the ruling party who had lived in his neighbourhood hated him because he was a Muslim.  The Tribunal suggested to the appellant that, according to the evidence of the Australian Department of Foreign Affairs and Trade, there was no evidence to suggest that Muslims in Tamil Nadu were discriminated against in any systematic way. 

12. The Tribunal did not accept on the evidence before it that there was a real chance that the appellant would be persecuted for the reason of his political opinion, being involvement with Tamil Nadu Muslim Munnetra Kazhagam (the TMMK), or his religious beliefs (the fact that he is a Muslim), if he returned to his home in Tamil Nadu now, or in the reasonably foreseeable future.  For those reasons, the Tribunal concluded that the appellant did not have a well-founded fear of being persecuted for a Convention reason if he returned to India and, therefore, that Australia did not have protection obligations to him under the Convention. 

13. In his amended application to the Federal Magistrates Court the appellant named two grounds.  The first is that the Tribunal made jurisdictional error when it assessed the appellant’s claim, in that it did not follow s 424A of the Act.  The particulars given in relation to that claim are somewhat obscure.  They simply set out findings made by the Tribunal.  However, none of the findings appear to be information that was not provided by the appellant to the Tribunal.  The second ground is that the Tribunal denied natural justice when it made its findings and reasons.  In his particulars of the ground, the appellant said that the Tribunal asked many questions at the hearing and the appellant did not understand why and how his answers to those questions were not received by the Tribunal and the appellant did not understand why his claim was rejected.  It is difficult to see why that involves a denial of procedural fairness.

14. In its reasons of 14 August 2007, the Federal Magistrates Court considered in some detail, the reasons of the Tribunal.  The primary judge observed that, in the written submissions relied on by the appellant, he did no more than effectively repeat the grounds of the amended application.  The Federal Magistrates Court found that the material particularised in relation to ground one was clearly material provided by the appellant to the Tribunal, at least, as originally constituted.  The primary judge observed, quite correctly, that there was no jurisdictional error on the part of the Tribunal as reconstituted, in referring to information provided by the appellant to the Tribunal as originally constituted. 

15. The primary judge also dealt with the second ground by observing that it was not apparent how the ground related to the principles of natural justice.  His Honour also observed, in any event, that the principles of natural of justice do not apply to the claim by reason of the operation of s 422B of the Act.  His Honour also addressed the possibility that the second ground raised a matter of actual bias.  The primary judge accepted that the matters that the appellant relied upon do not establish actual bias.  They simply indicate that the Tribunal did not accept the appellant’s account because of the Tribunal’s findings on credibility.  His Honour considered that the findings of fact made by the Tribunal were open to it on the material before it.

16. The primary judge concluded that none of the grounds contained in the amended application could be sustained.  His Honour also considered that there was nothing apparent in the reasons of the Tribunal to suggest that there was a jurisdictional error in its decision making process. 

17. In his notice of appeal to this Court, the appellant relied on the following grounds:

    (1)The Federal Magistrates Court erred in not considering that the Tribunal made a jurisdictional error in that it did not comply with s 424A of the Act.

    (2)The Federal Magistrates Court erred in not finding that the Tribunal denied natural justice to the appellant when it made the decision.

18. The grounds were expounded upon in the notice of appeal in a way that suggested that the appellant complained that the Tribunal, as reconstituted, was not entitled to take into account material furnished to the Tribunal as originally constituted.  That appears to be the substance of both grounds.  That proposition is misconceived.  It is clear that there is no failure to comply with s 424A, if part of the reasons for the Tribunal’s decision is information provided to the Tribunal by the applicant, irrespective of whether that information is provided before a decision of the Tribunal which is subsequently found to have been erroneous. 

19. The appellant filed written submissions to this Court.  The submissions do not go far beyond simply restating the grounds.  The submissions refer to findings made by the Tribunal in the context of asserting that there was a failure to comply with s 424A.  However, it is clear that the information referred to was information provided by the appellant to the Tribunal at some stage after his application to the Tribunal for review of the decision of the delegate. 

20. In his written submission, the appellant also referred to a claim that the Tribunal used very old country information to assess his claim.  He asserted that that was not a fair procedure and that his claim was therefore not properly assessed.  However, the Tribunal is entitled under the provisions of the Act to inform itself in such manner as it sees fit, so long as the Tribunal acts in good faith and there is no suggestion of jurisdictional error on its part.  The way in which it informs itself is a matter for the Tribunal.  Of course, if there is a failure to comply with provisions such as s 424A, that might be a different matter.  However, for the reasons I have indicated, I am not persuaded that there was any error on the part of the Tribunal in that regard. 

21. In so far as there was any allegation of failure to comply with mandatory provisions of the Act, I am not satisfied that there was any failure on the part of the Tribunal.  It follows that the appellant’s grounds have not been established as a basis for interfering with the decision of the Federal Magistrates Court.  The appeal must be dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        10 December 2007

The Appellant appeared in person.
Counsel for the First Respondent:	Ms T Wong
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	22 November 2007
Date of Judgment:	22 November 2007