SZJPG v Minister for Immigration and Citizenship

[2007] FCA 1811

FEDERAL COURT OF AUSTRALIA

SZJPG v Minister for Immigration and Citizenship [2007] FCA 1811

SZJPG AND SZJPH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1260 OF 2007

NORTH J
9 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1260 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJPG
First Appellant

SZJPH
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	9 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed;

2.The appellants pay the first respondent’s costs of the appeal.

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 1260 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJPG
First Appellant

SZJPH
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	9 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered on 22 June 2007.  The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal dated 18 September 2006.  The Tribunal affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Citizenship, not to grant protection visas to the appellants. 

2. The appellants are husband and wife.  As the claimed fear of persecution of the appellant husband was determinative of the proceeding of the appellant wife, the Federal Magistrate addressed the claims made by the husband before the Tribunal.  I will follow the same course and refer to the husband as the appellant in these reasons. 

3. The appellant claimed to fear persecution on grounds of religion, political belief and membership of a particular social group.  He claimed fear of persecution from Muslim extremists as a result of his Hindu faith and persecution by members of the Congress Party because of his membership of the Bharatiya Janata Party (BJP) and the involvement of family members with the BJP.

4. A summary of the appellant’s claims is set out in [5] and [6] of the reasons of the Federal Magistrate and I adopt that summary in these reasons.  Similarly, the Federal Magistrate described the course of the proceeding before the Tribunal at [15] to [24] of her judgment.  Again, in the circumstances it is not necessary for me to repeat those matters but rather adopt the summary provided by the Federal Magistrate. 

5. The Federal Magistrate set out the grounds of the amended application upon which the appellant relied at [26]. The grounds lacked clarity but were carefully analysed by the Federal Magistrate in [28] to [43] of her judgment.

6. One of the particulars of the first ground of appeal before the Federal Magistrate referred to s 424A of the Migration Act1958 (Cth). The particular stated:

   The tribunal failed to contact with [Mr Appellant], who is actual brother of the applicant and therefore generalized the applicants claim and therefore failed to apply correct tests in accordance with section 424A(1) of the Migration Act. Ref. SAAP Vs Minister for Immigration and Multicultural Affairs. HCA

7. The Federal Magistrate treated this particular as asserting a failure by the Tribunal to take steps to contact the appellant’s brother and correctly concluded that there was no obligation on the Tribunal to do so.  The Federal Magistrate observed that the appellant had been invited by letter dated 3 August 2006 to indicate to the Tribunal if there were witnesses from whom the appellant wished the Tribunal to obtain oral evidence.  The Federal Magistrate concluded that the opportunity was provided to the appellant but no request was received from the appellant that his brother give evidence. The Federal Magistrate concluded at [33]:

   To the extent that the Applicant’s complaint is an allegation of breach by the Tribunal of s.424A(1) of the Act such a complaint is misconceived.

8. In relation to most of the other grounds, the Federal Magistrate concluded that they amounted to a disagreement with fact findings made by the Tribunal.  As such the complaints did not constitute jurisdictional error.  The Federal Magistrate also concluded that the Tribunal had committed no jurisdictional error in rejecting the appellant’s claim of fear of persecution by reason of membership of the particular social group, being persons with the name Patel. 

9. In relation to an allegation that the Tribunal had applied the wrong test in relation to relocation, the Federal Magistrate concluded that the Tribunal had committed no jurisdictional error because, in view of its rejection of the appellant’s case on the facts, there was no obligation to proceed to consider the issue of relocation.

10. The notice of appeal to this Court contained one ground only. That ground was that the Federal Magistrate erred in failing to find that the Tribunal’s decision was made in breach of s 424A of the Act resulting in jurisdictional error. The appellant alleged that there was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1).

11. The ground asserted in the notice of appeal seems to have been included in a formulaic way.  It seems to bear no relationship either to the facts or the circumstances of the proceeding.  In the submissions of the first respondent, a conscientious attempt is made to identify some possible bases upon which the section might be called in aid of the appellant.  It rightly explains that the circumstances of the case do not disclose any error made by the Tribunal in applying the section.

12. The appellant was not legally represented at the hearing of the appeal.  He was asked to explain the criticism of the decision of both the Federal Magistrate and the Tribunal by reference to the ground of appeal.  He did not put any argument in support of the ground. 

13. To the extent that s 424A(1) figured in the reasoning of the Federal Magistrate, no error is revealed. The Tribunal did rely upon country information to some extent. For instance, it found that Hindus are in the majority in Gujarat. This general country information falls within the exception in s 424A(3)(a) and it was thus not necessary for the Tribunal to disclose it to the appellant.

14. Consequently, the appeal must be dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        21 November 2007

Counsel for the Appellant:	Appeared in person
Solicitor for the Appellant:
Counsel for the Respondent:	Mr G T Johnson
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	9 November 2007
Date of Judgment:	9 November 2007