SZFFY v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1927
•14 DECEMBER 2005
FEDERAL COURT OF AUSTRALIA
SZFFY v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1927MIGRATION – no issue of principle
SZFFY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1849 OF 2005
CONTI J
14 DECEMBER 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1849 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZFFY
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
CONTI J
DATE OF ORDER:
14 DECEMBER 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant to pay the respondent’s costs fixed at $2000.
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 1849 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZFFY
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
CONTI J
DATE:
14 DECEMBER 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from the orders and reasons for judgment of Scarlett FM made and delivered on 14 September 2005, whereby his Honour dismissed the appellant’s application under the Judiciary Act 1903 (Cth) for constitutional writs against the Refugee Review Tribunal (‘the Tribunal’) in respect of its decision handed down on 1 December 2004. The Tribunal had affirmed an earlier decision of a delegate of the Minister rejecting the appellant’s application for a protection visa.
The appellant is a citizen of India who arrived in Australia on 3 April 2004. That date, which was provided by the Minister in her written submissions filed in the present appeal, conflicts with the date recorded in the Tribunal’s reasons for decision. Although the Federal Magistrate remarked in his reasons for judgment upon the inconsistency between the date of the appellant’s arrival recorded in the Tribunal’s reasons, with one of the appellant’s claims, such observation was unconnected with his Honour’s reasons, and thus nothing turns upon it for present purposes.
The appellant did not attend the hearing scheduled by the Tribunal. The only evidence before the Tribunal therefore of the appellant’s claims was that contained in a two-page, unsigned document entitled ‘Statement of Claim’, bearing the date 23 June 2004, which the appellant had apparently filed in the Tribunal at the same time as he lodged his application for review.
The appellant is a Hindu and claimed to have been a leader of a local branch of the Indian Congress Party and was therefore ‘widely known in the community’. Apparently in his capacity as local party leader the appellant engaged with minority groups, such as Muslims and Christians, and championed the cause of ‘tolerance’ and ‘peace’ in his local community. Those activities involved meetings with local religious leaders and the formation of ‘peace committees’ throughout Hyderabad. The appellant claimed that those activities led to him being threatened on numerous occasions by extremist groups such as ‘RSS’ and ‘Shev Sinh’ and sometimes physically assaulted by the same. In one particular incident in September 2003, the appellant claims to have been beaten with ‘edged weapons and other fire arms’, and would have been killed were it not for the intervention of some of his Muslim friends. The appellant also claimed that he was the subject of adverse propaganda by those extremist groups which involved accusations that he was ‘Muslim in the shape of the Hindu’. The police were not able to offer him any protection from those threats, assaults or patterns of victimisation, according to the appellant, nor was he able to relocate anywhere else within Hyderabad, owing to his notoriety as the creator of an ‘association’ committed to peace. The appellant claimed that the Bharatiya Janata Party (‘BJP’), then in government, promoted the Hindu nationalistic fervour that led to the communal riots with Muslims that the appellant sought to prevent through his peace committees.
The Tribunal found that without further evidence it could not be satisfied that there was a real chance that the appellant would suffer serious harm for a Convention reason were he to return to India. In particular, in the light of independent country evidence showing that the Hyderabad government had shown itself ready to oppose, and quell, any religious violence, the Tribunal indicated that it was not able to make a finding that there would not be adequate state protection of the appellant, were he to return to India, absent further details from the appellant about the particular actions in which he had engaged and the circumstances under which the authorities refused him assistance.
On 13 September 2004 the Tribunal wrote to the appellant informing him that it was unable to make a decision in his favour on the strength of the information provided by the appellant alone. The appellant was then invited to a hearing scheduled for 19 October 2004, to which the appellant replied by sending to the Tribunal a completed ‘Response to Hearing Invitation’ form dated 17 October 2004. On the morning of that scheduled hearing, the Tribunal received a doctor’s certificate that had been sent by the appellant stating that the appellant was unable ‘to attend court hearing’ from 18 October to 21 October 2004. The Tribunal sent a further letter to the appellant by express post that same day inviting him to a re-scheduled hearing on 27 October 2004. On 26 October 2004, the Tribunal contacted the appellant’s former advisor by telephone and was informed by the advisor that he was not sure if the appellant would be attending the hearing but that he would telephone the appellant and ‘check’. The Tribunal received no further response from the advisor. On 27 October 2004 the Tribunal proceeded to make a decision on the review without taking any further action to allow or enable the appellant to appear before it, pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’). Although subsequently to making its decision on the review, the Tribunal received its original letter of 13 September 2004 marked ‘return to sender’, it is clear from the appellant’s Response to Hearing Invitation form and his facsimile of 19 October 2004 that he was aware of the hearing as originally scheduled.
In his application for relief before the Federal Magistrate, the appellant raised a lengthy number of grounds, each of which were rejected by his Honour. I am not satisfied that his Honour erred in reaching the conclusions which he did. At their highest the appellant’s grounds of review invited impermissible merits review of the Tribunal’s decision.
His Honour went on to consider several other issues raised by counsel for the Minister. The first was whether the Tribunal had fallen into jurisdictional error as a result of reaching a decision on the review without taking any further steps to allow or enable the appellant to appear before it, in accordance with s 426A. In finding that the Tribunal had acted in accordance with ss 425, 425A and 426A of the Act, his Honour applied SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 251, in which I held that in circumstances similar to the present, the Tribunal is not bound to accord applicants for review the ‘prescribed period’ of 14 days mandated by Migration Regulations 1994 (Cth) reg 4.35D in respect of invitations to appear made under s 425 of the Act. His Honour was correct to follow SZDQO in the present case, particularly since the Tribunal gave the appellant, at whose behest the hearing was rescheduled in the first place, more than enough time to recover from his illness, at least by reference to the period of time indicated by the doctor on his or her certificate of 19 October 2004.
The Minister also drew to his Honour’s attention the decision of the Federal Magistrates Court in SZDOG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 972, in which Smith FM held that the Tribunal had committed jurisdictional error by reaching a decision adverse to the applicant for review on the basis of inaccurate information. In that case, the Tribunal had requested further information from the applicant by a certain date pursuant to s 424 of the Act, which information had not been provided. Prior to the date of the Tribunal’s decision, the Tribunal had received its earlier letter of request marked ‘return to sender’. Smith FM held that the Tribunal had at least constructive knowledge of the applicant’s unawareness of the Tribunal’s request for further information and so the Tribunal erred by proceeding to make a decision pursuant to s 424C of the Act. The primary judge distinguished SZDOG in his reasons for judgment below on the basis that the present appellant was aware of the original Tribunal hearing invitation, and had indicated his intention to attend the same. I, too, am unable to gain any assistance from SZDOG in the present factual context.
Finally, his Honour dealt with the alternative finding of the Tribunal that, even assuming the appellant’s claims to be true, the appellant could have relocated to another part of India to avoid persecution. I have not found it necessary to address the Minister’s submissions in support of that finding in the absence of any error on the part of the Tribunal in reaching its primary conclusion, namely, that it was not satisfied that there would be inadequate state protection for the appellant upon his return to India.
On 30 September 2005, the appellant filed a notice of appeal from the Federal Magistrate’s judgment. The grounds relied upon by the appellant read literally as follows:
‘1. The Single Judge of the Federal Magistrates Court in his Honors Judgment delivered on the 14 September 2005 failed to find error of law, Jurisdictional error, Procedural fairness and relief under Section 39B of the Judiciary Act.
2. The tribunal breached section 424A of the Migration Act 1958.
3. His Honor failed to find error of Law in the RRT decision.
4. Recent High Court judgement: Plaintiff S 157/2002 v Commonwealth of Australia…
5. Recent Federal Court of Australia judgement: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs…’
At today’s hearing, the appellant did not attempt to particularise those grounds or to elaborate upon them in any meaningful sense, in spite of my invitation for him to do so. In the absence of further detail I am not able to discern how any of those grounds bear relation to the Tribunal’s decision and processes, which I have summarised earlier. For the reasons that I have already indicated, I do not consider that his Honour erred in rejecting the appellant’s application for review of the Tribunal’s decision.
In those circumstances the appeal must be dismissed and I order the appellant to pay the Minister’s costs of $2000.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate:
Dated: 18 January 2006
The appellant appeared in person Solicitor for the Respondent: Clayton Utz Date of Hearing: 14 December 2005 Date of Judgment: 14 December 2005
2
0