SZNUJ v Minister for Immigration and Citizenship
[2010] FCA 632
•23 June 2010
FEDERAL COURT OF AUSTRALIA
SZNUJ v Minister for Immigration and Citizenship [2010] FCA 632
Citation: SZNUJ v Minister for Immigration and Citizenship [2010] FCA 632 Appeal from: SZNUJ v Minister for Immigration and Citizenship [2010] FMCA 179 Parties: SZNUJ, SZNUK and SZNUL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number(s): NSD 337 of 2010 Judges: PERRAM J Date of judgment: 23 June 2010 Catchwords: MIGRATION – Visas – Protection visas – Decision of Refugee Review Tribunal – Disclosure – Requirement to give particulars of information considered to be the reason or part of the reason for affirming decision under review – Exception – Information that is not specifically about the applicant or another person but about a class of persons to which the applicant or other person is a member – s 424A(3)(a) Migration Act 1958 (Cth) Legislation: Migration Act 1958 (Cth) ss 424, 424A Date of hearing: 26 May 2010 Date of last submissions: 26 May 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 20 Counsel for the Appellants: Self-represented Counsel for the First Respondent: Ms L Buchanan Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 337 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNUJ
First AppellantSZNUK
Second AppellantSZNUL
Third AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
23 JUNE 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.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
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 337 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNUJ
First AppellantSZNUK
Second AppellantSZNUL
Third AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
PERRAM J
DATE:
23 JUNE 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The three appellants are a husband, wife and daughter. They arrived in this country on 30 November 2008 and shortly thereafter applied for protection visas, that is, the kind of visas issued by this country to persons whom the Commonwealth is satisfied that it owes obligations of protection to under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. Such obligations arise in respect of persons who have a well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.
The appellants are from Kerala in southern India. The husband is an engineer by trade and worked as a businessman prior to his leaving India. He is presently 61 years old. He appeared before me alone and unrepresented. It was apparent that he acted as the family spokesman.
The family’s basis for claiming to be entitled to protection visas arises from several claims of persecution as a result of their Christian religious beliefs and their political opinions which are associated with the Congress Party.
The delegate who considered the appellants’ applications considered that he should refuse to issue the requested protection visas. The appellants applied, as they were entitled, for a review of that decision by the Refugee Review Tribunal (“the Tribunal”). The Tribunal conducted a hearing on 11 June 2009 at which time the husband appeared with the assistance of a Malayalam interpreter. During the hearing the Tribunal member referred to various matters touching upon the status and treatment of Christians in Kerala and also the violent activities of the Communist Party of India – Marxist (CPI-M). The Tribunal member afforded the applicants an opportunity to respond to this material at the conclusion of the hearing, an invitation which was taken up by them in the form of a written submission received by the Tribunal on 26 June 2009.
The Tribunal then surveyed the information available to it about the status of Christians in Kerala and concluded that, whilst things were not ideal, it was apparent that steps were being taken to curb violent attacks upon them.
The Tribunal accepted the appellants’ claims to be Christians but did not find that the situation in Kerala was sufficiently serious. In relation to the husband’s claimed political activities, the Tribunal concluded that his account was tarnished by a significant degree of embellishment. The Tribunal drew a similar conclusion in relation to the attacks alleged by him arising from the family’s Christian faith.
Since it did not accept key parts of the family’s account of persecution, the Tribunal affirmed the delegate’s decision. The appellants then applied for prerogative relief from the Federal Magistrates Court. In that Court, that relief was pursued on the following grounds:
1. The Tribunal did not give to the applicants before the hearing the independent evidence that it had about Christians and [the] political situation in Kerala, India. The Tribunal used this information (Court book pages 134 to 136). This was against section 424A of the Migration Act 1958.
2. The Tribunal failed to comply with s 424 of the Migration Act 1958.
(a) The invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act.
(i) The invitation did not specify the way in which the additional information may be given.
(ii) The invitation did not specify the period within which the information was to be given.
Therefore I submit that the Tribunal failed to analyse properly the “future harm” that we may face if we have to go back to India.
Hence, due to this failure, the Tribunal has committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing my claims.
The learned Federal Magistrate dealt with each ground. As to the first, his Honour reasoned that the information the Tribunal had about Christians in Kerala was the kind of information which it was entitled to use by reason of s 424A(3)(a) of the Migration Act 1958 (Cth) (“the Act”). Section 424A requires the Tribunal to provide applicants with adverse material upon which it proposes to act but that obligation is itself subject to an exception in s 424A(3)(a). It provides relevantly:
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
…
As the learned Federal Magistrate correctly reasoned, the information relied upon by the Tribunal was plainly of that nature.
As to the second ground the Federal Magistrate reasoned that there was no material indicating that the Tribunal had decided to issue an invitation under s 424. Section 424 provides:
Tribunal may seek information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3)A written invitation under subsection (2) must be given to the person:
(a)except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b)if the person is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
I too am unable to discern an invitation under s 424 in the materials before the Federal Magistrate although I can readily understand how the Tribunal’s invitation at the close of the oral hearing to put on further material might have been thought in the appellants’ minds to be a s 424 invitation. However, the short fact is that it was not.
The Federal Magistrate also rejected a second aspect of the second ground, namely, that the Tribunal had failed to analyse the future harm that the appellants might be exposed to if they were to return to India. His Honour did so because his reading of the Tribunal’s reasons was that it had, in fact, addressed that question and determined that there was no risk.
The family has now appealed to this Court. The notice of appeal raises the following grounds:
1.His [H]onors judgment delivered on the 16 March 2010 failed to find the error of law, jurisdictional error, procedural fairness and relief under section 39B of the [J]udiciary Act 1903.
2.The Tribunal failed to consider an integer of applicants [sic] claim, in failing to consider whether or not a Christian family with political view[s] in India were at risk of harm from radical Hindu dominated political party, and not able to access effective protection whilst the Tribunal formed the view that the applicants were credible witnesses.
3.The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.
4.The Hon. FM failed to take [into] consideration that the Tribunal[’s] decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.
Before me the husband appeared both for himself and for his family with the benefit of a Malayalam interpreter. He put his submissions carefully and thoughtfully. His point, in substance, was that the Tribunal made a mistake in relying on its own information about the religious and political situation in Kerala. He noted that the material consisted largely of press reports and he submitted that the fact was that in Kerala different parts of the press were beholden to different parts of the political landscape. There were, therefore, Hindu press outlets favouring a Hindu perspective, Christian press outlets favouring Christian perspectives as well as outlets sympathetic to the Communist Party. That being so, he argued, the use of information sourced from the press by the Tribunal was apt to pose a risk of error for what appeared, on its face, to be independent coverage could just as well be propaganda.
For myself, I can see some force in these observations. The difficulty, however, is twofold. First, the Act expressly permits the practice of using this kind of information by reason of s 424A. The husband’s argument makes the case against the wisdom of that provision but it does not establish that the Tribunal committed jurisdictional error by using the information. Secondly, it is by no means clear that the information relied upon by the Tribunal was entirely from press sources which were adverse to the appellants. There were, for example, press articles from Christian sources.
The oral argument addressed to me by the husband did not go to a notified ground of appeal but it was appropriate to entertain it nevertheless. I did not apprehend that the husband pursued the remaining grounds of appeal. However, for completeness I should note that I do not accept them. The first ground does not really state a claim upon which I could reach a conclusion. The second ground asserts, in effect, that the Tribunal failed to consider an aspect of the family’s claim, namely, the harm that would befall them if they were to return to India.
I do not think that such a ground can succeed. The Tribunal carefully surveyed what the risks posed to the appellants were. It did so by surveying the political situation in Kerala and assessing whether it thought the family’s claim about persecution were correct. Since it did not think it was correct, it concluded that it did not believe that there was “a real chance that the applicant, the applicant wife or the applicant daughter will suffer harm in India now or in the reasonably foreseeable future”.
The third ground alleges legal and factual error in dismissing the case. This is not particularised in any way and that makes it difficult to be sure about what is alleged. In those circumstances it does not disclose a ground of appeal which I could resolve. In order to do so it would need to be presented with a degree of particularity which descended to the detail of what the legal or factual errors were.
The fourth ground is an allegation of unjustness in the decision particularly in light of the gravity to the family in their situation. The Tribunal, of course, rejected the existence of that gravity. Since that analysis remains in place it is difficult to see how this ground of appeal can go anywhere. In any event, the existence of injustice does not demonstrate the presence of a jurisdictional error in the Tribunal’s process of reasoning or procedure and, of course, without such an error no ground can be shown for the granting of prerogative relief.
In all of those circumstances, it seems to me that the appeal must 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 Perram. Associate:
Dated: 23 June 2010
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