SZHLL v Minister for Immigration and Multicultural Affairs
[2006] FCA 674
•24 MAY 2006
FEDERAL COURT OF AUSTRALIA
SZHLL v Minister for Immigration and Multicultural Affairs [2006] FCA 674
SZHLL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & REFUGEE REVIEW TRIBUNAL
NSD 359 OF 2006COLLIER J
24 MAY 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
NSD 359 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHLL
AppellantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second RespondentJUDGE:
COLLIER J
DATE OF ORDER:
24 MAY 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant to pay the first respondent’s costs.
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 359 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZHLL
AppellantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE:
24 MAY 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from a judgment of Federal Magistrate Scarlett of 2 February 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 29 September 2005. The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant a protection visa to the appellant.
The appellant is a citizen of India. Before the Tribunal the appellant claimed to fear persecution for reason of his religion. He claimed that as a Hindu, he was attacked, threatened and pursued by a gang of Muslims who demanded money owed by his employer. He also claimed that he complained to the police but they were less than enthusiastic about prosecuting his claim. The gang had threatened his family, and he feared relocating as he feared he would be subject to harassment by the police. The basis of this fear was his belief that his dispute has escalated into religious dispute as he is a Hindu and his pursuer is a Muslim who has considerable political influence in India.
The Tribunal found that any harm that might befall the appellant arose not for a Convention reason but arose out of a commercial dispute in his employment. It found no evidence that the appellant’s pursuer would be using the power of the state to harass or harm the appellant or that he would be pursued throughout India as alleged. The Tribunal also considered that if the appellant did have a fear of persecution it would be reasonable, in the appellant's circumstances, to relocate to another city distant from his pursuer.
Before the learned Federal Magistrate the appellant claimed that the Tribunal had failed to consider, primarily, that there will be a real type of persecution, and that his life would be in danger if he was asked to return to India in breach of s 91R of the Migration Act 1958 (Cth) (“the Act”). The appellant also submitted that the Tribunal had made an erroneous finding that the motivation for the persecution of the appellant was a commercial dispute, and had breached s 424A of the Act in that it did not communicate to the appellant the finding that the dispute arose out of a commercial dispute even though it developed into one with religious overtones.
The Federal Magistrate found that there was no failure to comply with s 91R of the Act; that the Tribunal did assess the factual basis of the appellant’s claim and while not denying that the appellant had suffered assault and ill-treatment from the people involved, were sceptical that their influence would extend beyond the immediate area; and said that any harm that was threatened arose from the criminal sanctions by these other people, arising out of the commercial dispute.
The Federal Magistrate also found that the appellant’s challenge to the Tribunal’s findings was a challenge to factual findings made by the Tribunal which the court could not review.
In relation to the appellant’s claim of breach of s 424A of the Act, the Federal Magistrate found that the Tribunal’s finding that the dispute was a commercial dispute and did not arise essentially or significantly for a Convention reason, was not information under s 424A of the Act. Section 424A of the Act did not cover the Tribunal’s subjective appraisals and thought processes for determinations.
In the notice of appeal filed on 22 February 2006 the appellant claims that the Federal Magistrate failed to properly deal with the “jurisdictional error” committed by the Tribunal. The appellant also repeated his claims that the Tribunal breached s 424A of the Act and made an erroneous and unreasonable finding. The appellant also claimed the Tribunal made its relocation finding contrary to the “relocation principles” enunciated in Randhawa’s case.
At the hearing before me the appellant withdrew the second ground of appeal but chose to pursue his first ground as appeared in the Notice of Appeal. In relation to this remaining ground of appeal the appellant argued in his written submissions that:
1.The Tribunal made a serious jurisdictional error by referring to the adverse finding made by the delegate that the appellant’s claims were not Convention related.
2.If the Tribunal used that information to create a “preconceived mind” that the delegate made an adverse finding about the appellant’s refugee claims, then the Tribunal should have put the conclusion into writing to the appellant as per s 424A of the Migration Act.
3.Specifically the Tribunal’s reasoning indicates the Tribunal had acknowledged that the appellant is at personal risk but formed the view that the appellant could have relocated away from harm to either New Delhi or Calcutta. The appellant therefore argued that the Tribunal had found that he was a person to whom the Convention applied and to whom Australia owed protection obligations.
During the hearing, Counsel for the appellant highlighted a recitation of events at the Tribunal, appearing at p 8 of their Reasons for Decision, which included the following:
At the hearing the Tribunal confirmed with the applicant that the above details accurately described the applicant’s claims. The Tribunal discussed with the applicant the Convention and a view, such as that advanced by the primary decision-maker, that the applicant’s claims were not Convention related.
Counsel for the appellant submitted that this statement also indicated that the Tribunal had approached the case with preconceived views of the appellant’s case.
In response, the Minister has submitted that there is nothing in the reasons of the Tribunal to support these contentions, that the Tribunal reached its own decision on the material before it and that the delegate’s decision was not “information” that “formed part of the reason” for the Tribunal’s decision and therefore it attracted no obligation under s 424A.
Section 424A provides:
(1)Subject to subsection (3) the Tribunal must:
(a) give the applicant in the way that the Tribunal considers appropriate in the circumstances particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review, and
(b) ensure so far as is reasonably practical that the applicant understands why it is relevant for review, and
(c) invite the applicant to comment on it.
(2)The information invitation must be given to the applicant:
(a) except where paragraph (b) applies one of the methods specified in section 441A, or
(b) if the applicant is in immigration detention by a method prescribed for the purpose of getting documents to such a person.
(3)This section does not apply to information:
(a) that is not specifically about the applicant or another person and it's just about a class of person of which the applicant or other person is a member, or
(b) the applicant gave for the purpose of the application, or
(c) that is non-disclosable information.
The leading case interpreting s 424A is SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. In that case the Tribunal had taken evidence from a daughter of the applicant and later used that evidence as a reason to affirm the decision under review without giving the applicant in that case written notice of the information it had obtained from the daughter. The High Court held that the failure of the Tribunal to do so was in breach of s 424A, an error which went to the Tribunal’s jurisdiction.
In my view, in the case before me there is no evidence the Tribunal acted in breach of s 424A or that the delegate’s decision in any way formed part of the reasons for the Tribunal’s decision. The Tribunal had before it the Department’s file which included the protection visa application and the delegate’s decision report. It would be strange if it did not. It would also be strange if the Tribunal did not acknowledge the decision of the delegate or make reference to it. It is the role of the Tribunal to review protection visa decisions under the Migration Act. It seems clear, however, from the reasoning of the Tribunal as appears in its decision that the Tribunal had formed its own views of the application and its own view of the case before it and within the hearing which the applicant appeared. Federal Magistrate Scarlett in considering the relevance of s 424A also noted this point.
As a result I dismiss the appeal before me. The costs in this matter are to be borne by the appellant.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 1 June 2006
Solicitor for the Appellant: Mr Chandra Jayawardena Counsel for the Respondent: Mr Geoffrey Johnson Solicitor for the Respondent: Phillips Fox Date of Hearing: 24 May 2006 Date of Judgment: 24 May 2006
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