SZLML v Minister for Immigration - [2008] FMCA 1219

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLML v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1219

MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for judicial review of decision of Refugee Review Tribunal affirming decision not to grant protection visa.

Migration Act 1958 (Cth), ss.424AA, 424A

SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270
SZMCD v Minister for Immigration & Anor [2008] FMCA 1039
SZLTC v Minister for Immigration & Citizenship [2008] FMCA 384

Applicant:

SZLML

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3194 of 2007

Judgment of:

FEDERAL MAGISTRATE HOWARD

Hearing date:

20 August 2008

Date of Last Submission:

20 August 2008

Delivered at:

Sydney

Delivered on:

17 October 2008

REPRESENTATION

Counsel for the Applicant:

Ms Wright

Counsel for the First Respondent:

Mr Kennett

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Each party pay their own costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3194 of 2007

SZLML

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant is a citizen of India. The Applicant was born in 1983.
The Applicant lived in a village in the state of Kerala, India.
The Applicant arrived in Australia on 10 April 2007. On 19 April 2007 the Applicant applied to the Department of Immigration &

Citizenship for a Protection Visa on 19 April 2007.
A delegate of the Minister for Immigration & Citizenship refused to grant the Applicant a Protection Visa. The delegate made this decision on 31 May 2007 and notified the Applicant of the decision and of the Applicant's review rights by letter dated 31 May 2007.
The basis for the delegate's refusal to grant the visa application to the Applicant was that the Applicant was not a person to whom Australia had protection obligations under the Refugee's Convention.
The Applicant applied to the Refugee Review Tribunal (hereinafter the Tribunal) on 29 June 2007 for a review of the decision of the Minister's delegate.
On 3 September 2007 the Tribunal affirmed the decision of the Minister's delegate not to grant the Applicant a Protection Visa.
The Applicant seeks a review of the decision of the Tribunal. The grounds of the application are contained in the Amended Application filed 25 July 2008:-
“1.The Tribunal made a jurisdictional error by failing to accord procedural fairness and, in particular, by failing to comply with s.424AA of the Migration Act (Cth).
PARTICULARS
(a) The applicant applied for review of the delegate's decision on 29 June 2007, as a consequence of which s.424AA of the Migration Act applied to his review proceedings.
(b) At the hearing, the Tribunal put to the applicant for comment or response information to the effect that the Communist Party of India (CPI) and the Communist Party of India (Marxists) (CPI (M)) are not the same party (CB62.2).
(c) This constituted the giving of particulars of information within the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FMCA 1219
Decision Date: 17 October 2008

CaseChat Overview and Summary

The case of SZLML v Minister for Immigration involved the applicant, SZLML, seeking judicial review of a decision by the Tribunal regarding his refugee status. The central issue before the court was whether certain information provided by the Tribunal to the applicant was in compliance with s.424AA of the Migration Act. Specifically, the applicant argued that the Tribunal failed to provide him with adequate information about the reasons for the decision under review, as required by the statute.

The legal issue that the court had to decide was whether the "information" referred to in the amended application filed by the applicant on 25 July 2008, specifically paragraph 1(b) of the "Grounds of Application", was indeed "information" for the purposes of s.424AA. This was a question of statutory interpretation, particularly regarding the relationship between s.424A and s.424AA of the Act. The court considered that the Tribunal's "Statement of Decision and Reasons" did not adequately address the applicant's claims about his political involvement and the risks he faced in India. The court also took into account previous cases where s.424A was interpreted, finding that exclusions identified in s.424A(3) should apply equally to s.424AA. Consequently, the court concluded that the information in question did not qualify as "information" under s.424AA if s.424A(3) was applicable.

The court dismissed the application, holding that the Tribunal had not breached its obligations under s.424AA. The reasoning was that the exclusions in s.424A(3) extended to s.424AA, and thus, the information provided did not meet the statutory requirement. Additionally, the court found that the applicant's claims were not well-founded, and he did not face a real chance of convention-related persecution in India.

ORDERS:
1. The application is dismissed.
2. Each party is to bear their own costs.

Orders

Orders of the court

Application dismissed.

Each party pay their own costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In s.424A(1)(a) it states: “Subject to subsections (2A) and (3), the Tribunal must:(a) Give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review.” Because of the similarity in that part of the wording which has been highlighted above from s.424AA and s.424A, I agree with the submission made on behalf of the Respondents that it is relevant for the Court to consider those cases where s.424A was interpreted by the Courts. Is the "information" referred to in paragraph 1(b) of the “Grounds of Application” included in the Amended Application filed 25 July 2008 "information" for the purposes of s.424AA? The Tribunal's "Statement of Decision and Reasons" are contained in Exhibit 1 (the Court Book). At pages 7 and 8 of the Tribunal's decision (pages 62 and 63 of the Court Book) the Tribunal stated inter alia -“... Regarding his third main claim, the Tribunal expressed concern that at certain stages in the hearing, the Applicant said his opponents supported the CPI and at others, he said, they were with the CPI (M). Addressing this concern, the Applicant said the CPI and CPI (M) are "the same thing". The Tribunal put to him that they are not, and the Applicant said that they are within the same party. It is possible he meant that they are within the same coalition, which is true. He did not speak of his opponents in any detail ... Overall, the Tribunal finds the Applicant's grasp of politics to be very vague and unimpressive, considering he claims to have persevered in politics beyond his school years and through a number of violent attacks occurring over almost a decade. Even allowing for his being aware that the CPI and the CPI(M) are part of the same political coalition, the Applicant did not impress the Tribunal in his description of the protagonist parties in this case. The Tribunal finds that the Applicant's familiarity with politics is not what one would reasonably expect to find in a person with the Applicant's claimed longevity in the AVBP and his claimed perseverance in the face of political opponents ...The Tribunal does not accept on the evidence before it that the Applicant has had any significant involvement in politics, or even student politics, in India.The Tribunal is not satisfied that the Applicant faces a real chance of convention-related persecution in India. His claimed fear of such persecution is not well-founded. He is not a refugee.” In my view the "information" contained in paragraph 1(b) of the Amended Application will not come within s.424AA if s.424A(3) is applicable in this case. In SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270 Cowdroy J stated at paragraph 27:-“27.The Court observes that s.424AA of the Act does not contain an equivalent provision to s.424A(3). Section 424A(3) identifies material which is not ‘information’ for the purposes of the application of that section. However, as s.424AA is merely an alternative form of notification available to the Tribunal (see s.424A(2A)), the Court considers that the exclusions contained in s.424A(3) apply with equal force to s.424AA. Such inference is supported by the collective use of the term ‘information’ in s.424A(2A) of the Act (a subsection which applies to both ss.424A and 424AA), as such use implies uniformity of meaning. Section 424A(2A) provides:-‘(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.’Accordingly, the Court considers that what is not ‘information’ for the purposes of s.424A(1) of the Act is also not ‘information’ for the purposes of s.424AA.”

Ratio Decidendi

Legal Principle Established

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