SZNTQ v Minister for Immigration and Citizenship
[2010] FCA 858
•11 August 2010
FEDERAL COURT OF AUSTRALIA
SZNTQ v Minister for Immigration and Citizenship [2010] FCA 858
Citation: SZNTQ v Minister for Immigration and Citizenship [2010] FCA 858 Appeal from: SZNTQ v Minister for Immigration & Citizenship & Anor [2010] FMCA 366 Parties: SZNTQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 682 of 2010 Judge: COLLIER J Date of judgment: 11 August 2010 Legislation: Migration Act 1958 (Cth) Div 4 of Pt 7, s 424A Cases cited: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 cited
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 509 citedDate of hearing: 11 August 2010 Place: Brisbane (Heard in Sydney) Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 24 Solicitor for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First and Second Respondents: Mr R White of Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
NSD 682 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNTQ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
11 AUGUST 2010
WHERE MADE:
BRISBANE (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
NSD 682 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNTQ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE:
11 AUGUST 2010
PLACE:
BRISBANE (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
This is an appeal against the decision of Cameron FM delivered on 20 May 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 2 March 2010. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.
BACKGROUND
The appellant is a citizen of India who arrived in Australia on 9 May 2008. On 20 June 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 18 September 2008, and notified the appellant by letter dated 19 September 2008. On 14 October 2008 the appellant applied to the Tribunal for a review of that decision, and on 30 June 2009 the Tribunal (differently-constituted) affirmed the decision of the delegate. On 26 November 2009, the Federal Magistrates Court ordered, by consent, that the decision be quashed and the matter remitted to the Tribunal to be determined according to law.
The appellant claimed before the Tribunal to be a Muslim, who worked as a journalist for “Drishti”, an evening daily newspaper. On 22 July 2004, he wrote an article which referred to events which had taken place in Marad in January 2002 and May 2003 involving the deaths of Muslims and Hindus. Because of the publication of this article, he claimed that members from Hindu parties such as the Rashtriya Swayamsevak Sangh (“RSS”), the Vishwa Hindu Parishad (“VHP”) and the Bajrang Dal made threats against him. On the morning of 23 July 2004, a group of people came to his home and threatened to kill him if he continued writing about Marad. The incident was reported in Drishti in that evening’s edition. As he did not see anyone in the group, he could not provide evidence to the police. Following this incident, he continued to receive a number of threatening phone calls.
In 2004, he moved to the United Arab Emirates (“UAE”) where he worked as a driver. When he returned to India for a holiday in 2006 he again started to receive telephone calls and was forced to stay in his wife’s and relatives’ houses. In 2007, he returned to India (from the UAE) for surgery and was again threatened by these groups. He had to live in his wife’s house for five months. He returned to the UAE after his recovery but, once there, received threatening phone calls on his mobile phone. He returned to India in February 2008, before coming to Australia.
REFUGEE REVIEW TRIBUNAL
The Tribunal did not accept that the appellant was threatened by extremists from the RSS, the VHP, the Bajjrang Dal, or other Hindu extremists because of the articles which he wrote about the Marad incidents. The Tribunal noted that contrary to his evidence, the second incident in Marad took place in May 2003, over a year before he claimed to have published his articles. Further, it was difficult to understand why Hindu extremists would be concerned about the appellant’s articles given that the second Marad incident was committed by Muslim extremists, and the appellant had claimed to have been publishing articles about the activities of Hindu extremists for quite some time. Further, both Marad incidents resulted in criminal proceedings against a number of persons, some of whom were found guilty of various crimes in 2008. Further, all the Muslim families who had been displaced as a result of the first Marad incident had returned to Marad. The appellant’s claim that the Hindu extremists remained in control of the area did not therefore accord with the available information before the Tribunal.
The Tribunal also considered that the appellant’s account of events did not make sense given that he claimed that Hindu extremists came to his home and threatened to kill him if he continued to write about Marad after the first article was published, but did not claim that the Hindu extremists returned to his home to threaten him after the publication of his second article that same evening. Nor did it make sense that the appellant, after receiving the threatening phone calls in the UAE, would decide to flee to another country rather than simply change his mobile phone number. Similarly, his claim that the Hindu extremists would be able to locate him in the UAE was also not plausible given the fact that they did not trace him during the two years he was there. Further, the Tribunal considered that the appellant’s claims were undermined by the fact that he chose to return to his home area in Kerala, the very area where he claimed to fear persecution, three times between 2006 and 2008. The Tribunal also gave greater weight to the view it had formed of the appellant’s credibility than it did to the letters that the appellant produced to first Tribunal in order to corroborate his claims.
The Tribunal did not accept that there was a real chance that the appellant would be persecuted for reasons of his real or imputed political opinion, his religion or his membership of the particular social group of journalists in India if he were to continue his part-time work as a local correspondent. The Tribunal found that, even were the appellant to face any such threats, he would be able to seek effective protection from the authorities in Kerala.
The Tribunal was therefore not satisfied the appellant was a person to whom Australia has protection obligations under the Convention, and affirmed the decision under review.
FEDERAL MAGISTRATES COURT
On 25 March 2010 the appellant filed an application for judicial review of the Tribunal’s decision. In his application the appellant contended that:
1.Jurisdictional error in the decision made by RRT.
2.Breach of Natural Justice.
3.Will be filed later.
The Federal Magistrate noted that the appellant had not filed anything in the Court since his initial application and affidavit in support. Consequently, there was no need to consider further ground 3 of the application.
In respect to grounds 1 and 2, the Federal Magistrate noted that neither of the two allegations were particularised and, as a result, they lacked meaningful substance. His Honour further noted that the rules of natural justice are codified in those provisions found in Div 4 of Pt 7 of the Migration Act 1958 (Cth) (“the Act”). His Honour found that the Tribunal had complied with its obligations in this regard. Further, to the extent that the Tribunal made findings of fact, these were open to it on the evidence before it.
Having found that the Tribunal decision was not affected by jurisdictional error, his Honour dismissed the application for review.
APPEAL TO THIS COURT
By Notice of Appeal filed on 10 June 2010, the appellant raised the following grounds of appeal against the decision of Cameron FM:
1.The honourable FM failed to consider the grounds of my application such as error of law made by the Tribunal not giving me the opportunity of the adverse information in the possession of the Tribunal. The Court below erred in that it ought to have found that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the meaning of the Act.
2.The Tribunal’s decision was in breach of section 424A(1) of the Migration Act 1958 (Cth):
Particulars: (a) There was certain adverse information used by the Tribunal to affirm the decision under review.
(b) The Tribunal did not disclose the information in accordance with s 424A(1).
3.The Tribunal made error of law and lack procedural fairness and therefore committed jurisdictional error
4.The Tribunal made denial of natural justice. Because it failed to provide further opportunity before the tribunal.
[Errors in original]
SUBMISSIONS OF THE PARTIES
The appellant was self-represented in these proceedings. He did not file any written submissions. At the hearing of the appeal before me the appellant submitted that he had given evidence throughout the proceedings, and that he was afraid of going back to India.
The Minister was represented by Counsel. Written submissions were filed on behalf of the Minister prior to the hearing.
GROUNDS OF APPEAL
Section 424A of the Migration Act 1958 (Cth)
Both grounds of appeal 1 and 2 raise the complaint that the Tribunal has acted in breach of s 424A(1) of the Act. In particular, the appellant claims that:
·the Tribunal failed to provide the appellant with the opportunity of receiving adverse information in the possession of the Tribunal (ground 1); and
·there was certain adverse information used by the Tribunal to affirm the decision of the delegate and the Tribunal did not disclose this information in accordance with s 424A(1) (ground 2).
Section 424A provides:
(1) 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 a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(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.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non disclosable information.
As the majority of the High Court observed in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 509 at 615:
Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal's obligation is limited to the written provision of “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”.
The key question, of course, is what is the “information” that the appellant say the Tribunal should have provided? In this case, the appellant has not identified the information required to be put to him by the Tribunal, in either the notice of appeal or in his oral submissions.
At [18] of his Honour’s reasons for decision the learned Federal Magistrate said:
A review of the Tribunal’s decision record reveals that all of the information it relied on in affirming the delegate’s decision was written information which the applicant provided to the Minister’s department or to the Tribunal; other information which the applicant gave the Tribunal for the purposes of the review or independent country information which the Tribunal sourced itself. All such information falls within the exceptions to the operation of s.424A (1) found in s.424A (3). As a consequence, the Tribunal had no obligation to serve a s.424A notice on the applicant. In fact, it did serve such a notice but this was directed to information touching on an issue which, in the result, was not the reason or part of the reason for the Tribunal’s affirming of the delegate’s decision. No breach by the Tribunal of its obligations under s.424A (1) is apparent.
I can identify no error in this statement of the Federal Magistrate. The appellant’s grounds of appeal based on alleged breach of s 424A of the Act by the Tribunal are unsustainable.
“Open to the Tribunal to find that the appellant was a refugee”
To the extent that the appellant contends in the first ground of appeal that it was open on the evidence before the Tribunal for the Tribunal to find that the appellant was a refugee, the appellant seems to be seeking a merits review of the Tribunal’s decision. The Court cannot engage in review of the merits of the appellant’s claims: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].
Lack of procedural fairness/denial of natural justice
Lack of procedural fairness and denial of natural justice are claimed by the appellant in grounds of appeal 3 and 4. These grounds of appeal are not particularised. In the absence of particularisation and an attempt by the appellant to engage with his Honour’s reasons they are meaningless and raise no case to answer on appeal.
CONCLUSION
No error is apparent in the judgment of the Federal Magistrate. The appellant this morning sought to reagitate matters going to the merits of his claim to be a refugee, however issues going to the facts are issues exclusively for the Tribunal. The appeal should be dismissed with costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 11 August 2010
2
1