SZKGK v Minister for Immigration and Citizenship
[2008] FCA 725
•22 May 2008
FEDERAL COURT OF AUSTRALIA
SZKGK v Minister for Immigration and Citizenship [2008] FCA 725
SZKGK and SZKGL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 420 OF 2008
LANDER J
22 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 420 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZKGK
First AppellantSZKGL
Second Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE OF ORDER:
22 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s costs.
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 420 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZKGK
First AppellantSZKGL
Second Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LANDER J
DATE:
22 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal against an order of a Federal Magistrate made on 7 March 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 6 January 2007 and handed down on 30 January 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship made on 23 November 2000 to refuse to grant a Protection (Class XA) visa to the appellants.
The appellants are husband and wife who are citizens of the Philippines. They entered Australia on 6 November 1999 and made their application for a Protection (Class XA) visa on 31 October 2000. The wife appellant makes no separate claims under the Convention and relies on membership of the first appellant’s family unit. The husband appellant (the appellant) claimed to have a well-founded fear of persecution from the Philippine military authorities and the New Peoples Army (NPA). He claimed that rumours surfaced that he supported the NPA which led the military authorities to commence surveillance of the appellants. The appellant claimed he worked for a family transport business on weekends and became friends with a “guy who had been there”, who was later revealed to be a high ranking NPA member. The NPA member had hired a bus which was used for NPA operations and the appellant was blamed by his family for getting the family involved in NPA matters. The appellant feared the authorities believed he was involved with the NPA.
The appellant claimed the NPA member was arrested in 1997 and the NPA blamed the appellant for his arrest. The NPA commenced sending threats to the appellant and started to believe the appellant was passing information to the military. The appellant spoke to a Colonel in the armed forces and was advised it was no longer safe for the appellants to be living in the Philippines. The appellant indicated they had been constantly harassed by the Philippine military authorities.
The appellant claimed that in 2002, after he and his wife had left the Philippines, his uncle was killed by the NPA. He claimed his uncle was the person who had helped him leave the country. The NPA continued to ask his uncle where the appellant was after he had left.
Although a delegate of the first respondent had refused the application for Protection (Class XA) visas on 23 November 2000, the appellants had not applied to the Tribunal for a review of that decision until 26 July 2006. The Tribunal found, however, that the appellants had applied to the Tribunal within time and therefore the Tribunal had jurisdiction. This was because the letter notifying the appellants of the delegate’s decision was sent to an address in Liverpool “Street” rather than Liverpool “Road” and current authority required strict compliance with the addressing of such letters, notwithstanding the appellants had in fact received the letter. Accordingly, the Tribunal found time did not run against the appellants.
The Tribunal did not accept that the appellant was telling the truth in relation to his past experiences in the Philippines. The Tribunal did not accept that the appellants genuinely feared persecution for the following reasons:
Having regard to the differences between what the Applicant said in his original application and what he said at the hearing before me, the fact that he and his wife did not apply for protection visas for almost a year after they arrived in Australia and the fact that they did not apply for review of the decision refusing their applications for over five and a half years after they were notified of that decision. …
In particular, the Tribunal noted that the appellant gave different evidence regarding his feared persecution. In his protection visa application the appellant stated he feared both the military and the NPA but, at the hearing before the Tribunal, only stated that he feared the NPA. Moreover, the appellant had made no mention of his friendship with the high ranking NPA officer in his protection visa application. The appellant wife did not give evidence before the Tribunal. Indeed, she did not even attend, although invited to do so.
The appellant filed an amended application in the Federal Magistrates Court for review of the Tribunal’s decision on 23 July 2007. So far as I can discern from the application the appellant claimed, inter alia, that:
1.The Tribunal failed to provide the appellant natural justice and procedural fairness;
2.The Tribunal ignored the merits of the claim;
3.The Tribunal failed to take relevant information into account;
4.The Tribunal’s decision was made in bad faith.
Again, the appellant wife did not attend at the hearing of the application before the Federal Magistrate. The Federal Magistrate dismissed the application. His Honour noted that s 422B of the Migration Act 1958 (Cth) (the Act) applied to this application. Therefore, Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule, except in relation to bias or apprehended bias. He noted that the appellants were invited to appear before the Tribunal. Moreover, they were invited to comment on information which the Tribunal said may be the reason or part of the reason for deciding they were not entitled to a protection visa: s 424A of the Act. The issue which was determinative in the Tribunal disposing of the review was the credibility of the appellant in relation to the claims which he advanced. A consideration of the transcript indicated the Tribunal put the determinative issue, that of the appellant’s credibility, to him at hearing: SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152. That issue was squarely put to the appellant at the hearing and he was given an opportunity to comment on that issue. The Tribunal’s findings were open to it on the evidence. His Honour also found no evidence of bias or apprehended bias or bad faith, and no jurisdictional error was revealed in relying on the delay in applying for the visa and review. He rejected the appellant’s complaint that the Tribunal had not understood the claims or evidence, or ignored evidence and claims.
Although the appellant had asserted the inconsistencies in his evidence at hearing could be explained by the mistakes made by a friend helping him with the original application, his Honour found that to be different from the fraudulent conduct of a migration agent in SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64.
On 25 March 2008 the appellants filed a notice of appeal which raised the following grounds:
1.The Federal Magistrate failed to afford procedural fairness;
2.The Federal Magistrate failed to find errors by the Tribunal;
3.The Federal Magistrate’s decision was an improper exercise of power.
The appellants were self-represented on the appeal. The appellant wife again did not attend.
They provided an outline of argument which, in the main, addressed the facts. In his oral submissions, the appellant addressed only the facts.
Three grounds of appeal were addressed in the written submissions. The first ground of appeal alleges that the Federal Magistrate failed to accord the appellants procedural fairness. No particulars are given of how the Federal Magistrate failed in that respect. There is nothing in the material before me which would support such a claim. Indeed, the material suggests otherwise. The appellants were given an opportunity to file an amended application before the Federal Magistrate which they did. They were also provided an opportunity to put further affidavit evidence, which they also did. The appellant husband made oral submissions in support of his application at the hearing before the Federal Magistrate and submissions in reply to the Minister’s submissions. The hearing before the Federal Magistrate seems to have been conducted regularly in all respects. The first ground of appeal is not made out.
The second ground of appeal is that the Federal Magistrate failed to find errors by the Tribunal. Again, no particulars are given and the Federal Magistrate’s alleged failure is not addressed in the written submissions. This ground of appeal seems to be no more than a complaint that the Federal Magistrate did not accept the appellant’s contentions.
The Federal Magistrate’s reasons show that the Federal Magistrate comprehensively examined all of the appellant’s complaints and applied his mind to each of them, and rejected them for what appears to be sound reasons.
The third ground is that the Federal Magistrate’s decision was an improper exercise of power. This ground of appeal, like the other two, is not particularised. There can be nothing in this complaint. The Federal Magistrate was invested with the jurisdiction to hear the application. There was no suggestion from the papers that he improperly exercised his power.
All three grounds fail and the appeal must be dismissed with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 22 May 2008
Counsel for the Appellants: The Appellant appeared in person Counsel for the First Respondent: Ms N Johnson Solicitor for the First Respondent: Sparke Helmore
Date of Hearing: 20 May 2008 Date of Judgment: 22 May 2008
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