SZJRR v Minister for Immigration and Citizenship

[2007] FCA 1825

FEDERAL COURT OF AUSTRALIA

SZJRR v Minister for Immigration and Citizenship [2007] FCA 1825

SZJRR AND SZJRS v MINISTER FOR IMMIGRATION & CITIZENHSIP AND REFUGEE REVIEW TRIBUNAL
NSD 749 OF 2007

RYAN J
22 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 749 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJRR
First Appellant

SZJRS
Second Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RYAN J
DATE OF ORDER:	22 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.  The appeal be dismissed.

2.  The appellants pay the first respondent’s costs to be taxed in default of agreement.

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 749 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJRR
First Appellant

SZJRS
Second Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RYAN J
DATE:	22 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders of Driver FM made on 19 April 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”); see SZJRR v the Minister for Immigration and Citizenship (2005) FCA 1195.

2. By way of background, the appellants are husband and wife and are nationals of India who arrived in Australia on 7 March 2006.  Only the husband, the first appellant, made claims under the Convention, with his wife relying on membership of his family unit.  For those reasons, the first appellant will, henceforth, be referred to as “the appellant.”  On 4 April 2006, the appellant applied for a protection visa which was subsequently refused by a delegate of the first respondent, (“the Minister”) on 17 June 2006.

   The proceedings before the Tribunal

3. On 7 July 2006, the appellant filed an application to the Tribunal for review of the delegate’s decision.  Before the Tribunal, the appellant claimed to have a well-founded fear of persecution by members of the Bharatiya Janata Party (“the BJP”).  He claimed to have been elected to a local council as a member of the Indian Congress Party.  The appellant claimed that, after he had been injured in an attack by BJP members, he applied for a visitor’s visa and came to Australia. He further claimed that, while he has been in Australia he has been informed by his mother and daughter that people are looking for him, and, although his relatives complain to the police, they receive no response. 

4. On 24 July 2006, the Tribunal sent a letter to the appellant pursuant to s 424A of the Migration Act1958 (Cth) (“the Act”), seeking comment on information before the Tribunal. On the same day, the Tribunal sent another letter to the appellant requesting additional information from the appellant. The Tribunal did not receive a reply to either of its letters. On 26 July 2006, the Tribunal wrote to the appellant indicating that it had considered the material before it in relation to the application but was unable to make a decision in his favour on that information alone and invited him to attend before the Tribunal on 29 August 2006 .

5. On 29 August 2006, the Tribunal received a facsimile from the appellant stating that he was unable to attend the hearing that day due to illness. Attached to that facsimile was a medical certificate stating that he was unfit for work from 28 to 29 August 2006. On 1 September 2006, the Tribunal sent a letter to the appellant advising that the hearing had been rescheduled for 18 September 2006. In that letter, the Tribunal advised that, if the appellant did not attend the hearing, the Tribunal might decide his case in his absence without further notice. On 14 September, an officer of the Tribunal contacted the appellant by telephone and the appellant’s sister spoke on his behalf, confirming that he would attend the hearing. However, the appellant failed to attend the hearing on 18 September 2006 and the Tribunal proceeded under s 426A of the Act.

6. On 3 October 2006, the Tribunal sent a further letter to the appellant indicating that it had considered all the material in relation to his case and invited him to the handing down of the Tribunal’s decision on 24 October 2006.  On 11 October 2006, the Tribunal received a letter from the appellant thanking the tribunal for its letter in which, he pointed out, his wife’s name had been misspelt.  On 11 October 2006, the Tribunal wrote to the appellant confirming that the decision would be handed down on 24 October 2006 and correcting the error in the spelling of the name of the appellant’s wife. 

7. The Tribunal delivered its decision on 24 October 2006, affirming the decision under review.  In its reasons the Tribunal stated:

   ‘Because he did not attend a hearing, the tribunal has been unable to explore the details of his claims or their truthfulness; therefore, the tribunal is unable to be satisfied that any of his claims are true.” ‘

8. The Tribunal was not satisfied on the evidence before it that the appellant would face a real chance of persecution if he were to return to India, as there was nothing other than his assertions to support his claims.  Therefore, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution.

   The proceeding in the Federal Magistrates Court

9. The appellant filed an amended application in the Federal Magistrates Court on 19 February 2007. The learned Federal Magistrate found that there had been no contravention of s 424A(1) of the Act as it was clear from the terms of the decision of the Tribunal that it turned on an insufficiency of information advanced by the appellant, and, in those circumstances, the Tribunal was under no obligation to invite comment.

10. The learned Federal Magistrate found that the Tribunal had accorded the appellant procedural fairness and had met its obligations under s 425 of the Act. Driver FM also found that the Tribunal had been entitled, in the appellant’s absence, to proceed at the hearing, pursuant to s 426A of the Act. His Honour held that there was no substance in the grounds of review as advanced by the appellants, and accordingly, the Tribunal’s decision was not infected by judicial error. Consequently, the learned Federal Magistrate ordered that the application be dismissed and that the applicants pay the first respondent’s costs of and incidental to the application, fixed in the sum of $4000.

    The proceedings in this Court

11. By notice of appeal filed in this Court on 30 April 2007, the appellant appeals on the following ground from the whole of the orders of the learned Federal Magistrate;

    ‘1. The FM failed to find that the tribunal’s decision was in breach of section 424A of the Migration Act 1958 of the Commonwealth; and, therefore, fall under jurisdictional error.
    (a) 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 section 424A(1).’

    In his notice of appeal, the appellant seeks the following orders: 

    ‘1.  Leave be granted to include additional grounds for review of the decision of the tribunal on the grounds of jurisdictional error.
    2.  The application be allowed.
    3.  There be an order in the nature of certiorari to quash the decision of the Tribunal. 
    4.  There be an order in that nature of mandamus requiring the tribunal to review according to law the decision of the Minister to refuse a protection visa sought by the applicant.
    5.  The first respondents pay the applicant’s costs.’ 

12. At a directions hearing on 23 May 2007, Deputy District Registrar Farrell made the following direction; 

    ‘The appellant file and serve written submissions no later than five clear working days before the hearing date unless otherwise directed.’

    The appellant has failed to comply with that direction and has not filed any written submissions. 

13. In his oral submissions this morning, the appellant indicated that he relied on the ground set out in his notice of appeal. He also reiterated in his oral submissions that he had been prevented by his car breaking down from attending the last scheduled hearing of his application before the Tribunal. He claimed to have been precluded by a language barrier from communicating that difficulty to the Tribunal on that day, and, because the Tribunal had made its decision immediately, there was no point in contacting it subsequently. That contention, I observe parenthetically, does not appear to accord with the history of the publication of the Tribunal’s reasons which is recounted at [6] above.

14. The Minister has submitted that the ground of appeal advanced by the appellant does not particularise the information which the Tribunal was required, but allegedly failed, to put to the appellant for comment pursuant to s 424A of the Act. The Minister submits for various reasons that the Tribunal complied with s 424A. First, the Tribunal sent a letter dated 24 July 2006, pursuant to s 424A, inviting the appellant to comment on information before the Tribunal.

15. Second, the Minister submits, the Tribunal rejected the appellant’s claims on account of his failure to provide further information to substantiate his case, and refers to SZEZI v the Minister (2005) FCA 1195 in which Allsop J held that s 424A is not contravened where an appellant fails to attend the Tribunal hearing, and the Tribunal has to rely on the detail in the protection visa application, which is often insufficient. Counsel for the Minister has referred to this passage, at [29] of his Honour’s reasons;

    ‘The reason for the decision was simply and no more than the evaluative conclusion found on the perceived inadequacy of the information in the sense of an absence of details and intrinsic information which has been invited.  It would be an inadequate and misleading statement to say that the information was the reason, or part of the reason, for a decision;  it was the lack of requested further assistance and explanation that was the reason.’

16. The Minister also submits that, at [4] and [5] of the Federal Magistrate’s reasons, his Honour expressed himself as satisfied that there had been no breach of s 424A. That finding, the Minister submits, was open to Driver FM on the evidence before him, and there was no error in his reason on this point. Accordingly, the Minister seeks that the appeal be dismissed with costs.

    Disposition of the appeal

17. In his notice of appeal, the appellant relies on this sole ground;

    ‘!. The FM failed to find that the tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error. (a) There was certain adverse information used by the tribunal to affirm the decision under the review, and the tribunal did not disclose the information in accordance with s 424A(1).’

    Section 424A(1) of the Act provides as follows:

    ‘Applicant must be given certain information:

    (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 reasonably practicable, that the applicant understands why it was relevant to the review; and
    (c) invite the applicant to comment on it.
    …’

18. In a letter dated 24 July 2006, the Tribunal wrote to the appellant inviting comment on information before the Tribunal.  In that letter, the Tribunal stated:

    ‘The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa. 

    The information is as follows:

    You stated in your application for a protection visa that you left India legally and had no trouble obtaining a travel document such as a passport. 

    This information is relevant because this indicates that you are of no adverse interest to the government of India. 

    You are invited to comment on this information.  Your comments are to be in writing and in English.  They are to be received at the Tribunal by 16 August 2006.’

    That letter clearly complied with the requirement of s 424A(1). That the appellant failed, or refused, to reply to the letter by way of comment upon the information identified by the Tribunal does not bear upon whether the Tribunal did what it was obliged to do by the subsection. The appellant also failed to respond to a second letter sent by the Tribunal on 24 July 2006, which requested further information in relation to the appellant’s claims.

19. Ultimately, however, as the appellant failed to attend the hearing before the Tribunal, the Tribunal based its decision, not on the information on which it had requested comment pursuant to s 424A(1), but on the insufficiency of information advanced by the appellant in support of his application for a protection visa.

20. As indicated in SZEZI v the Minister (2005) FCA 1195, the question of the Tribunal’s compliance with s 424A(1) did not arise in those circumstances. I, therefore, cannot discern any jurisdictional error of the kind asserted by the appellant. The appeal must, accordingly, be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:        29 November 2007

The first appellant appeared in person
Counsel for the Respondent:	Mr Reynolds
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	22 November 2007
Date of Judgment:	22 November 2007