SZQCJ v Minister for Immigration and Citizenship
[2011] FCA 1184
•24 November 2011
FEDERAL COURT OF AUSTRALIA
SZQCJ v Minister for Immigration and Citizenship [2011] FCA 1184
Citation: SZQCJ v Minister for Immigration and Citizenship [2011] FCA 1184 Appeal from: SZQCJ v Minister for Immigration & Anor [2011] FMCA 678 Parties: SZQCJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number(s): NSD 1543 of 2011 Judge: KATZMANN J Date of judgment: 24 November 2011 Catchwords: MIGRATION — Refugees – appellant applied for a protection visa as the partner of another applicant and then lodged a separate application in his own right – different treatment of the alleged partner’s application – whether the tribunal failed to put certain information to the appellant – requirements in ss 424A and 424AA of the Migration Act 1958 (Cth) Legislation: Migration Act 1958 (Cth) ss 5, 36, 424A, 424AA, 425, 441A, 474, 476 Cases cited: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1Date of hearing: 21 November 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 20 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter. Solicitor for the First Respondent: Mr O Jones of Clayton Utz Counsel for the Second Respondent: Submitting appearance
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1543 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQCJ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
24 NOVEMBER 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first repsondent’s costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1543 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQCJ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
KATZMANN J
DATE:
24 NOVEMBER 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant is an Indian national who claims to fear persecution from Muslim fundamentalists because he is homosexual. He arrived in Australia on 19 June 2010 on a subclass 676 temporary visitor’s visa using a passport issued by the Indian embassy in Doha, Qatar, where he had been living and working. On 30 July 2010 another man (“SZQCI”) applied for a protection visa, nominating the appellant as his partner and a member of the same family unit. On 7 October 2010 at the invitation of the Department of Immigration and Citizenship, the appellant submitted his own application for a protection visa in which he claimed that he left India with the other man, as they were unable to live in either India or Qatar because of their homosexual relationship. He contended that they would be killed “by Popular front” on that account and that his partner had been threatened by the group. In an interview with a delegate of the first respondent (“the Minister”) the appellant said that he, himself, had received death threats.
In order to obtain a protection visa the appellant had to have a well-founded fear of persecution for one of the reasons contained in Article 1A(2) of the Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951, as amended by the 1967 Refugees Protocol (collectively, “the Convention”). See Migration Act 1958 (Cth) s 36 (“the Act”). There was no question that homosexuality would qualify as a Convention reason (membership of a particular social group).
After interviewing them, the Minister’s delegate rejected the applications of the two men.They then applied to the second respondent (“the tribunal”) for a review of those decisions.
The tribunal invited the appellant to a hearing pursuant to s 425 of the Act, which took place on 16 February, 23 February and 2 March this year. The tribunal heard from both men, found discrepancies in and between their evidence, decided that the appellant’s claims to be homosexual were fabricated, and therefore rejected his application, holding that it could not be satisfied that he had a well-founded fear of persecution for any reason should he return to India. I infer that the tribunal came to the same conclusion in SZQCI’s case because his application was also rejected. Both men applied to the Federal Magistrates Court for judicial review.
The jurisdiction of the Federal Magistrates Court to make any orders is limited by the terms of ss 474 and 476 of the Act. In short, decisions of the tribunal are not open to review unless they are affected by jurisdictional error. See Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. In SZQCI’s case, the Minister conceded jurisdictional error and consented to orders remitting the matter to the tribunal for redetermination.
In his application to the Federal Magistrates Court the appellant alleged that the decision of the tribunal was made in jurisdictional error and in breach of the rules of natural justice. No particulars were given but the federal magistrate took a broad view of the application. After considering the appellant’s claims, amplified during oral argument, his Honour dismissed the application for want of jurisdictional error and ordered the appellant to pay the Minister’s costs. This is an appeal from those orders. At the heart of the appeal is the apparently inconsistent treatment of SZQCI’s case.
The grounds of appeal are expressed (without alteration) as follows:
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.
With some justification, the Minister described these grounds as “overlapping, repetitive and largely devoid of particulars”. There is no substance to any of them.
First, there is no doubt that the federal magistrate considered the grounds of the application.
Secondly, it matters not that it may have been open to the tribunal to find that the appellant was a refugee. What matters is whether it was open to the tribunal to find that he was not. The federal magistrate found the latter and, in that respect, his Honour was plainly correct.
Thirdly, the contention that the tribunal did not put adverse information to the appellant and was in breach of s 424A(1) of the Act cannot be sustained. 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.
“Non-disclosable information” is defined in s 5 of the Act. Suffice it to say that the information in question did not fall within that definition.
Section 424AA permits the tribunal to give the information referred to in s 424A orally in circumstances where the applicant appears before the tribunal because of an invitation under s 425. If it does, then paragraph (b) provides that the tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
At the tribunal hearing, the appellant and SZQCI gave evidence in each other’s cases. During the hearing of his own application, the tribunal member asked the appellant to comment on three pieces of information, informing him that they might be a reason for thinking the department’s decision was correct. The first two pieces of information concerned evidence given by SZQCI in the hearing of his application for review. As the federal magistrate observed, this was not information caught by the exemptions in s 424A(3) of the Act. But, as the federal magistrate also observed, a transcript of the recorded hearings prepared for the Minister (and which the appellant did not dispute) shows that the information was discussed with the appellant in a way that complied with s 424AA. The tribunal member provided the appellant with clear particulars of the information, tried to explain to him (through an interpreter) why the information was relevant to the review and what the consequences were of relying on it. He invited the appellant to comment on the information and advised him (three times) that he had the right to ask for further time to do so, a right he declined.
At the hearing of the appeal the appellant complained that he was treated differently from SZQCI, when their claims were identical. He pointed to the fact that in SZQCI’s case the Minister had consented to the tribunal decision being set aside for jurisdictional error. He said that he and SZQCI applied together and their cases were the same. If his partner’s case were to be reconsidered by the tribunal, he submitted, then so should his.
The appellant’s grievance is understandable. But the difficulty for him is that the error the tribunal made in SZQCI’s case was not made in his.
In SZQCI’s case, the consent orders made by the federal magistrate contained a note that the tribunal erred by referring to, and deciding upon, information contained in the appellant’s protection visa application that was not put to SZQCI, contrary to the requirements of ss 424A and 424AA. In the appellant’s case, however, the transcript records the following exchange:
TRIBUNAL MEMBER: All right, the last thing that I wanted to ask you about was the application forms that were completed in your name and [SZQCI’s] name.
[Appellant started to talk]
Just wait for a moment and I’ll explain the information. Now when the application form in [SZQCI]’s name was provided it said he believed he would be killed by the Popular Front because he was threatened by them in ... on February 2010 and beaten by them and hospitalised. A form was then completed and provided to the Department on the 8th October 2010 in your name and in that form it says my partner, naming him as [SZQCI], has been threatened by those groups because of our homosexual relationship. And in the question before that it identifies who you think may harm you as being the Popular Front. In the question before that it says: “who do you think may harm you,” and it says the Popular Front. Now this information is important and may be a reason for thinking the Department’s decision was correct because it doesn’t talk ... neither form talks about any threats or physical harm to you and in fact neither you nor [SZQCI] claim to have been hospitalised and you both now claim that threats were made against you by the Popular Front. The fact this is ... that your claims that you make now are not clear from these application forms might make me think I’m not being told the truth because if the claims were true I would have expected they would have been reflected in the application forms when they were put in. Have you got comments you’d like to make on that now or would you like to seek further time to make comments?
APPELLANT: You want now or later? Does the Member mean that I can give the answer today or I can take time to answer it later?
TRIBUNAL MEMBER: Well as I indicated, you have the right to ask for further time to make your comments and I will consider whether I think that’s necessary. Or we can just talk about the issue now ... or you can provide your comments now[.]
APPELLANT: I would like to say what I want to say now.
The tribunal did not rely on any other information that would give rise to issues of compliance with ss 424A and 424AA of the Act. It relied on the appellant’s own evidence at the hearing of his application, but this is excluded by s 424A(3). It also relied on inconsistencies in his account, but they do not amount to information for the purposes of s 424A (SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at [18]).
No other denial of procedural fairness or error of law has been identified. The federal magistrate explored whether there was any basis for concluding that there had been a denial of the procedural requirements in Division 4 of the Act or at common law, including whether a case of bias (actual or apprehended), was open, and he found there was not. I respectfully agree. The appellant told me that he and his partner want to stay together and cannot return to India where they would face many problems, which they fear. These matters relate to the merits of the application, which neither this Court nor the Federal Magistrates Court is entitled to review.
Accordingly, the appeal must be dismissed. The appellant should pay the Minister’s costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate:
Dated: 24 November 2011
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