SZJSV v Minister for Immigration and Citizenship

[2007] FCA 913

FEDERAL COURT OF AUSTRALIA

SZJSV v Minister for Immigration and Citizenship [2007] FCA 913

SZJSV AND SZJSW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 463 OF 2007

NORTH J
15 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 463 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJSV
First Appellant

SZJSW
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH  J
DATE OF ORDER:	15 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellants pay the costs of the first respondent fixed at $1,600.

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 463 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJSV
First Appellant

SZJSW
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH  J
DATE:	15 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an appeal from a decision of the Federal Magistrates Court given on 7 March 2007.  The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 16 October 2006.  The Tribunal affirmed the decision of a delegate of the then named Minister for Immigration and Multicultural Affairs not to grant protection visas to the appellants.

2. The appellants are husband and wife and citizens of India, who arrived in Australia on 3 May 2006.  The appellants were invited to the Tribunal hearing on 10 October 2006 in accordance with the Migration Act 1958 (Cth) (the Act). They did not appear at the Tribunal hearing and did not respond to the invitation or indicate why they could not attend. The Tribunal decided to make its decision pursuant to s 426A of the Act which allows it to make a decision without taking any further action to allow or enable applicants to appear before it.

3. The Tribunal had before it a written statement by the first appellant, the husband.  He stated that he feared for his life because he had been beaten and hospitalised by former business clients.  He claimed that his former business partner had embezzled funds from their company and disappeared while the first appellant was concerned with political activities for the Bharatiya Janata Party (BJP) in India.  He claimed that he had fled from his home town of Ahmedabad to Mumbai but angry customers seeking refunds for goods not delivered pursued him. 

4. The Tribunal expressed its reasoning and conclusion as follows:

   The claims of the primary applicant have not been evidenced by any documents indicating his claimed hospitalization.  He claimed to have no assets or money yet he has not explained how he bought two airline tickets to Australia and successfully navigated the Department’s vetting process for a Visitor visa.  Such a process requires (among other criteria) that a test of financial capacity is made of an applicant prior to the grant of a Visitor visa and that the Department is satisfied that the applicant has sufficient funds to cover a stay in Australia.

   The primary applicant has claimed that he filed a complaint with the Indian police but there is no record of this claim submitted as evidence on file.

   The primary applicant has claimed that he deliberately employed Muslims as staff members and that the majority of his clients were of the Muslim faith.  However, he does not claim to have been persecuted and harassed because of these clients Muslim faith nor has he explained how his membership of the BJP has any relevance or nexus to his fears for himself and his family’s safety.

   For a successful claim of refugee status it is required that the person be the subject of a Convention reason for the persecution problem he claims to have faced in India.  That is, he must have feared persecution for reasons of his race, religion, nationality, membership of a particular social group or political opinion.  The applicant has failed to satisfy the Tribunal that he can make any connection between his financial and business travails and the heretofore mentioned requirements of the Refugee Convention.

5. The appellants sought review before the Federal Magistrates Court on the ground of a breach of s 424A(1) of the Act. The particulars of the claim were set out by the Federal Magistrate at [11] as follows:

   There was certain information used by the Tribunal without providing an opportunity to respond.  The adverse information used by the Tribunal was not given by the applicant for the purpose of review.  This information was given for protection visa claim purpose to the delegate in deciding a protection visa.

   The Tribunal did not disclose the information in accordance with s.424A(1) of the Migration Act. The Tribunal did not take into account any evidence or materials before it. Neither the Tribunal made an inquiry or send any letter of invitation to comment on the adverse information under s.424A(1) which the Tribunal relied upon or used against the applicant to affirm the delegate's decision. The similar kind of information used by the Tribunal member without the applicant's presence or without providing an opportunity to comment on the information before it Tribunal.

6. The Federal Magistrate held that the Tribunal correctly applied s 426A in deciding to make its decision without giving the applicants a further opportunity to appear. The Federal Magistrate also held that the Tribunal did not breach the provisions of s 424A of the Act. The Federal Magistrate determined that the Tribunal had not made any jurisdictional error.

7. The appellants filed a notice of appeal in this Court on 20 March 2007.  On 30 March 2007, they were directed to file an outline of submissions no later than five clear days before the hearing of the appeal.  The appellants did not file any such submissions within the time directed.  Rather the first appellant appeared at the hearing of the appeal and handed up both an amended notice of appeal and written submissions. 

8. Mr White, who appeared on behalf of the first respondent, did not object to the filing of the amended notice of appeal nor the late filing of the written submissions.

9. The amended notice of appeal relied upon the ground that the Federal Magistrate erred in deciding that the Tribunal did not breach s 424A of the Act. The particulars were:

   The Tribunal in its decision depended on information obtained from the applicant’s file held by the Department. Thos information were used to decide that the applicant was not a refugee. S424A of the Migration Act 1958 imposed a heavy duty on the Tribunal to inform an applicant in writing about that information and to invite the applicant to contest those information. In this case the tribunal did not do so.

   The Honourable FM Scarlett overlooked the obligation of the Tribunal to do so, and also did not follow the precedence of SAAP, SZEEU. The Federal magistrate is in error in finding that the Tribunal was in no obligation to put the departmental information to the applicant under s424A since the applicant did not turn up for hearing. [sic]

10. In my view there is no substance to the ground relied upon by the appellants. Section 424A(1)(a) relates to information which the Tribunal:

    considers would be the reason or part of the reason for affirming the decision that is under review.

11. In the last of the paragraphs extracted from the Tribunal’s decision in [4] of these reasons, it is clear that the Tribunal rejected the appellants’ application because it could not make any connection between the appellants’ business troubles and any of the Convention grounds, namely, race, religion, nationality, membership of a particular social group or political opinion. That conclusion was based entirely upon the statement submitted by the first appellant. Furthermore, that statement falls within the exception in s 424A(3)(b).

12. The appeal must be dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North .

Associate:

Dated:        15 May 2007

Counsel for the Appellant:	Appellant appeared in person
Counsel for the Respondent:	Mr R White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	15 May 2007
Date of Judgment:	15 May 2007