SZHXK v Minister for Immigration

[2006] FMCA 1848

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHXK & ORS  v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1848

MIGRATION – Review of Refugee Review Tribunal decision – alleged failure to accord procedural fairness – consideration of obligations of procedural fairness at common law – no failure to afford procedural fairness under the Act – application dismissed.

Migration Act 1958, ss.422B, 424A

VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and others [2005] HCA 72
Devries v Australian National Railways Commission (1993) 177 CLR 472; 112 ALR 641

First Applicant: SZHXK

Second Applicant: SZHXL

Third Applicant: SZHXM

Fourth Applicant: SZHXN

Fifth Applicant: SZHXO

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3767 of 2005

Judgment of: Turner FM

Hearing date: 23 November 2006

Date of Last Submission: 23 November 2006

Delivered at: Sydney

Delivered on: 20 December 2006

REPRESENTATION

The applicant appearing in person

Counsel for the Respondents: Mr. Tim Reilly

Solicitors for the Respondents: Ms E. Warner Knight of Australian Government Solicitor

THE COURT ORDERS THAT:

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3767 of 2005

SZHXK

First Applicant

SZHXL

Second Applicant

SZHXM

Third Applicant

SZHXN

Fourth Applicant

SZHXO

Fifth Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed on 20 December 2005, seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.

2. The applicants are husband and wife, their two children, and the mother of the applicant husband. Only the first-named applicant has made specific claims under the Refugee Convention, his wife, children, and mother relying on their membership of his family. For convenience therefore, I will refer to the first named applicant as the applicant.

3. The applicant was born on 15 December 1968, and claims to be from India and of Hindu faith (“the Applicant”).

4. The applicant arrived in Australia on 13 March 2005 on a visitor’s visa, however details of the visa were not provided on the application form.

5. The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 7 April 2005.  In this application he claimed in a hand-written statement that he belonged, for a period of around one and a half to two years, to a “political outfit” called Shiv-Sena in Mumbai. After some time, he realised the party was extremist and decided to leave it. He and his family received threats. He decided to leave India for Australia.

6. This application for a protection visa was refused by a delegate of the first respondent on 9 August 2005.

7. On 2 September 2005 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on

   
   

   4 November 2005, at which time he maintained the claims made in his original protection visa application.

8. On 29 November 2005 the Tribunal handed down its decision, dated

   
   

   4 November 2005, affirming the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found:

   a)The Tribunal accepted that the applicants were citizens of India.

   b)The Tribunal did not accept that the applicant had been threatened by elements within Shiv Sena or that there is a real chance he will be or that he will suffer harm amounting to persecution for reason of his political opinion in India.

   c)The applicant could give no convincing reason as to why he should be targeted in the manner he described by supporters of Shiv Sena. The applicant stated that his role within the party was essentially social welfare work. He demonstrated some knowledge of Shiv Sena leadership personalities but did not know the names of local political figures. The Tribunal concluded that the applicant had not had any recent contact with the party or any other involvement in politics. This conclusion was put to the applicant (Court Book (“CB”) page 101) and was uncontested by the applicant.

   d)The fact that the applicant left the party two years before he left for Australia and that other more prominent figures have recently left without suffering harm as a result further undermines the credibility of the applicant’s claims.

   e)The Tribunal did not accept that the applicant had a well-founded fear of persecution in India for reason of his political opinion or for any other Convention reason.

9. The applicant then filed the application in this court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).

The application

1. In his application, the applicant set out two grounds as follows:

   1. The applicant claims that the Refugee Review Tribunal (the Tribunal) denied the applicant procedural fairness when the Tribunal failed to inform the visa applicants of the existence of the letter and the substance of its contents before affirming the refusal to grant a visa constitutes jurisdictional error on the part of the Tribunal.

   2. The Tribunal also denied the applicant natural justice when the Tribunal did not apply the simple way to test the applicant’s claim that he was suspected of revealing confidential information.  

The amended application

1. In his amended application filed on 8 June 2006, the applicant set out the following grounds and particulars:

   The applicant claims that the Refugee Review Tribunal (the Tribunal) denied the applicant procedural fairness not following the s.424A of the Migration Act.

   The Tribunal failed to inform the visa applicants of the existence of the letter and the substance of its contents before affirming the refusal to grant a visa constitutes jurisdictional error on the part of the Tribunal.

   Particulars: In the Court Book page 72 & 73 there is a two pages [sic] letter written against me and my family but I only came to know about the existence of this letter when I received the Court Book. But the Tribunal did not inform me about the existence of this letter it did not ask any comments from me, which the Tribunal has an obligation according to the Migration Act 1958 and the decision of the High Court.

   “At the end of the hearing, I inform (sic) the applicant there was a letter on the Department’s file from a person alleging that the applicant would make a fraudulent claim for protection in Australia after he and his family arrived on visitor visa. I said that the letter was typed and not signed. Its claims were general and lacked any detail which could be useful in making a decision on his application. Were that not so, I would put the information to him for comment. The letter was not referred to in the Delegate’s decision and appeared to have played no part in it. The letter would not play any part in my decision either” (CB 101.5).

   2. The Tribunal also denied the applicant natural justice when the Tribunal assessed his claim.

   Particulars: The role he said he had had within the party was essentially social welfare work. He demonstrated at hearing some knowledge of Shiva Sena leadership personalities but did not know the names of local political figures. I concluded from this that he has had no recent contact with the party or any other involvement in politics. I put this conclusion to him and he did not context it. (CB 101).

Ground 1

1. It is alleged by the applicant that the Tribunal had a duty under s.424A Migration Act to give him details of an undated letter to the Sydney Airports Corporation (CB 72-3). The decision of the Tribunal states that “At the end of the hearing, I informed the applicant there was a letter on the Department’s file from a person alleging that the applicant would make a fraudulent claim for protection in Australia after he and his family arrived on visitor visas. I said that the letter was typed and not signed. Its claims were general and lacked any detail which could be useful in making a decision on his application. Were that not so, I would put the information to him for comment. The letter was not referred to in the Delegate’s decision and appeared to have played no part in it. The letter would not play any part in my decision, either” (CB 112). The applicant accepted that the Tribunal had done this.

2. The relevant parts of s.424A provides:

   (1)     Subject to subsection (3), the Tribunal must:

   (a)  give to 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 a part of the reason, for affirming the decision that is under review; and

   (b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

   (c)  invite the applicant to comment on it.

   (2)    The information and invitation must be given to the applicant:

   (a)  except where paragraph (b) applies--by one of the methods specified in section 441A; or

   (b)  if the applicant is in immigration detention--by a method prescribed for the purposes of giving 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 is just about a class of persons of which the applicant or other person is a member; or

   (b)  that the applicant gave for the purpose of the application; or

   (c)  that is non‑disclosable information.

3. The Tribunal then went on to make its’ findings with attendant reasons. S.424A applies only to “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”.

4. The Tribunal stated that “The letter would not play any part in my decision, either”. There is no indication that the letter did play any part in the Tribunal reaching its decision.

5. The applicant sought to rely on the decision in VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and others [2005] HCA 72 to establish that the Tribunal had not complied with its obligations under the Migration Act.

6. Mr Reilly, counsel for the First Respondent, observed that the decision in VEAL of 2002 related to the Migration Act before s.422B was enacted. S.422B provides:

   Exhaustive statement of natural justice hearing rule

   (1)  This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

   (2)  Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

7. Mr Reilly relied on the following passage in paragraph 12 of the decision: “As for s 424A, it is enough to notice that that provision is directed to "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". The Tribunal said, in its reasons, that it did not act on the letter or the information it contained. That is reason enough to conclude that s 424A was not engaged…”

8. The Court took Mr Reilly to the passages in paragraphs 18 and 27 as follows: “It follows that the Tribunal's statement, that it gave no weight in reaching its decision to the letter or its contents, does not demonstrate that there was no obligation to reveal the information to the appellant and to give him an opportunity to respond to it before the Tribunal concluded its review. Deciding that it could reach its conclusion on other bases did not discharge the Tribunal's obligation to give the appellant procedural fairness”. [Paragraph 18]

   “The information which was contained in the letter was relevant to that inquiry and it could not be ignored by the Tribunal. The Tribunal was able to put the information aside from consideration in its reasons only because it reached the conclusion, on other bases, that the appellant was not entitled to a visa. But that step, of putting the information in the letter aside from consideration, could not be taken before reaching the conclusion that the application should be refused. It follows that to conduct the review with procedural fairness, the appellant had at least to know the substance of what was said against him in the letter…” [Paragraph 27].

9. Mr Reilly submitted that these were statements as to obligations of procedural fairness at common law, which applied to proceedings at the Administrative Appeals Tribunal before s.424A was enacted. The Court agrees. Mr Reilly submitted that the Courts consideration of s.424A concluded in paragraph 12 of its reasons. Again the Court agrees.

10. The Court finds that the Tribunal, having decided that the letter would not play any part in its decision, had no obligations to give particulars of that letter to the applicant. Nevertheless the Tribunal did tell the applicant, before it reached its decision, that it had the letter which alleged that the applicant would make a fraudulent claim for protection in Australia (CB 112.4).

11. The complaints by the applicant as to the Tribunal not providing the letter to him form the basis of claim one in his application. The Court finds that the applicant was not denied procedural fairness as alleged in ground 1.

12. Ground 1 of the amended application is the same as ground 1 of the application. The Court rejects both of these grounds.

Ground 2

1. The applicant alleges denial of natural justice. Ground 2 in his application is similar. Both grounds challenge findings of fact by the Tribunal.

2. It is not the function of this Court on judicial review to change findings of fact by the Tribunal unless those findings were not properly open to the Tribunal. There is nothing to show that the Tribunal acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ.

3. The Court rejects ground 2 in the application and amended application.

4. The Court finds that the Tribunal expressed its reasons clearly for affirming the decision of the delegate of the Minister; it made no errors of law and did not deny procedural fairness.

5. The Court finds that the Tribunal’s decision is a privative clause decision, and has not been affected by jurisdictional error. In such circumstances, and applying s.474 of the Act, there is no jurisdiction for this Court to interfere.

6. The application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate:  Dian Neligan

Date:  20 December 2006