SZFVO v Minister for Immigration and Citizenship

[2007] FCA 204

FEDERAL COURT OF AUSTRALIA

SZFVO v Minister for Immigration and Citizenship [2007] FCA 204

MIGRATION – no point of principle

Migration Act 1958 (Cth) s 424A

SZFVO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 1833
SZCJH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1660
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2

SZFVO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2491 OF 2006

TRACEY J
26 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2491 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFVO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	26 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.

2.The appeal be dismissed with costs fixed at $4500.00.

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 2491 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFVO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	26 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate, delivered on 14 December 2006, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 28 January 2005 and handed down on 17 February 2005: see [2006] FMCA 1833. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the appellant.

2. The appellant is a citizen of India.  He arrived in Australia on 2 September 2004 on a short term visitor’s visa.  On 28 September 2004 he lodged an application for a protection visa.  The appellant claimed to have a well-founded fear of persecution by supporters of the Congress Party because of his imputed political opinions.  The appellant’s case centred on the claim that his father was an active member of the Bharatiya Janata Party (“BJP”), and, because the appellant was the eldest son of his father, he feared that his political opponents, especially the Congress Party workers, believed that he may seek a political position as his father had done.  The appellant also sought to rely on the fact that he was a Muslim living in India.

3. An account of the proceeding before the Tribunal is provided in the Federal Magistrate’s reasons for decision: see [2006] FMCA 1833 at [15]-[34].

4. In his amended application to the Federal Magistrate’s Court the appellant relied on three grounds of appeal.  The first ground alleged jurisdictional error because the Tribunal had denied the appellant procedural fairness by making adverse findings as to the authenticity of the appellant’s documents and evidence, finding that the appellant was not truthful without having any proper basis for so doing, failing to disclose adverse information to the appellant and not providing the appellant with an opportunity to put his case.  The second ground asserted that the adverse findings on the authenticity of the appellant’s documents were not based on evidence.  The final ground alleged that the Tribunal misapplied the law by making adverse findings as to the availability of protection, because the decision was based on the appellant’s ability to avoid the feared persecution, and because the findings were not based on evidence.

5. The Federal Magistrate accepted that the first ground had been made out but not for the reasons advanced by the appellant. The Tribunal had not drawn to the appellant’s attention certain inconsistencies between some of his oral evidence and statements made in his visa application. A breach of s 424A of the Migration Act 1958 (Cth) (“the Act”) had, therefore, occurred. This constituted a jurisdictional error.

6. However, her Honour found that the Tribunal’s finding that it was possible and reasonable for the appellant to relocate within India was a separate and independent finding which was not affected by error. The Tribunal’s finding on this issue was open to it on the material before it. The Tribunal’s decision was supportable on this basis notwithstanding the breach of s 424A.

7. The notice of appeal to this Court alleged that:

   “The Federal Magistrate failed to find that the tribunal’s decision was in breach of natural justice, error of law and jurisdictional error at the time of deciding the matter before them.”

   No particulars were provided.  As already noted the Tribunal had, in fact, found jurisdictional error on the part of the Tribunal.

8. At the hearing of the appeal before me the appellant appeared in person.  He had the assistance of an interpreter. I invited him to elaborate on the grounds on which he sought to rely. Initially he was unwilling to do so. When pressed he said no more than that the Tribunal had not understood his case and had come to the wrong conclusion.

9. I have read the learned Magistrate’s reasons and can discern no appellable error. Notwithstanding the failure of the Tribunal to observe the requirements of s 424A of the Act there existed a separate and independent basis for the decision to which the Tribunal came: see SZCJH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1660 at [23]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [232] – [233]. No reviewable error was made in relation to the finding that the appellant could reasonably be expected to relocate within India.

10. The appeal should be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.

Associate:

Dated:        26 FEBRUARY 2007

The appellant appeared in person
Counsel for the Respondent:	Mr C. Mantziaris
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	26 February
Date of Judgment:	26 February 2007