SZJHX v Minister for Immigration and Citizenship

[2007] FCA 1337

FEDERAL COURT OF AUSTRALIA

SZJHX v Minister for Immigration & Citizenship [2007] FCA 1337

SZJHX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 873 OF 2007

MADGWICK J
14 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 873 OF 2007

BETWEEN:

SZJHX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	14 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs assessed in the sum of $2,800.00.

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 873 OF 2007

BETWEEN:

SZJHX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE:	14 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR

1. This is an appeal from a decision of the Federal Magistrates Court dismissing an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) which was adverse to the appellant.  The Tribunal was reconsidering the matter.  A differently constituted Tribunal had earlier also found against the appellant, but its decision was set aside upon application for judicial review. 

2. It must be said that the format of the Tribunal’s reasons for decision is extremely unhelpful. Nevertheless, the court below dealt with the two grounds for relief claimed by the appellant and rejected both. Those two grounds were that first, the Tribunal made a jurisdictional error by not complying with the requirements of s 424A of the Migration Act1958 (Cth) and second, that the Tribunal denied him natural justice.

3. The appellant is a Tamil Muslim who lived in Chennai in the state of Tamil Nadu.  As the first respondent submits, he essentially claimed a fear of persecution for reasons of his religion, ethnicity and political opinion.  He initially claimed a fear of persecution for having been an active member of a political organisation known as the MJI.  However, when the matter came back before the Tribunal after the quashing of the original Tribunal determination, he claimed to be not a member of the MJI but an active member of another pro-Muslim organisation known as the MMJ. 

4. His s 424A point was that because of the discrepancy, and how this impacted on his credibility in the rejection of his claims, the Tribunal was obliged to give him written notice of the earlier matter. However, as his Honour found, adopting a decision of Driver FM in SZHUI v Minister for Immigration [2006] FMCA 1042 at [63]:

   Where an applicant puts information to a review tribunal for the purposes of his or her review application, … it remains available to the tribunal on a reconsideration of the review application. Further, it does not lose its character as information presented to the tribunal for the purpose of “the [review] application:” s 424A(3)(b).

   The sub-section referred to provides that s 424A does not apply to information “that the applicant … gave for the purpose of the application.” I agree with the view taken by the learned magistrate and by Driver FM in the case referred to. In any event the second Tribunal ultimately accepted the claim that the appellant was a member of the MMJ and accepted that he had not been a member of the MJI as he asserted before the Tribunal as firstly constituted. The Tribunal went on to reject his claim on the basis that he had no political or religious profile such as to attract hostility sufficient to give rise to a well-founded fear of persecution and it also rejected other claims that an individual was pursuing him by bringing “false cases” or sponsoring them in revenge for earlier assumed political activity by the appellant.

5. The second ground relates to an assertion that the Tribunal denied the appellant natural justice by not watching certain video evidence which the appellant submitted after the appellant had given evidence before the Tribunal as secondly constituted.  The point of the tender of the video evidence was an attempt to prove that the appellant was a member of the MMJ.  The Tribunal member viewed the video before the appellant gave evidence and compared the video with certain photographs of the appellant which the Tribunal had.  The Tribunal member could not see that the video assisted the appellant and raised the matter with him when he gave evidence.

6. There was no doubt that the Tribunal member viewed the video and there is no doubt that it accepted that the appellant was a member of the MMJ.  If it were the case that there were any denial of natural justice that would be justiciable in this Court having regard to s 422B of the Act (which I do not believe to be the case), this is clearly a case in which there should be a discretionary refusal of relief.  A further discretionary ground would be that the Tribunal found that the appellant could relocate.  The learned Federal Magistrate rejected a jurisdictional attack on that finding and there is no appeal here challenging his Honour’s finding in that regard. 

7. The appeal will be dismissed with costs, assessed in the sum of $2,800.00.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:        28 August 2007

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 August 2007
Date of Judgment:	14 August 2007