SZCBQ v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2006-10-30|Before: Bennett J

REASONS FOR JUDGMENT 1 The appellant is an Indian citizen of Muslim belief who claims to have a well-founded fear of persecution for reason of his religious beliefs, political activities and associations. His claims to the Refugee Review Tribunal may be summarised as follows: · The appellant lived in Tamil Nadu in the South of India. He became a member of the Tamil Nadu Muslim Munnetra Kalagam party ('TMMK') in 1995 and was nominated acting secretary in 1998. · The ruling Bharati Janatha Party ('BJP'), which is of Hindu belief, was opposed to Muslims including the TMMK and himself. · The police were Hindu, opposed to Muslims and favoured the ruling party. In November 2000 they arrested and beat him. · After his arrest in November 2000, he joined the Dravida Munetra Kalagam party and was pressured to join another party, the All India Anna Dravida Munetra Kalagam party ('AIADMK'). Instead of joining the AIADMK, however, he publicly accused its leader of corruption. · The AIADMK threatened to kill him and he fled to Rajasthan for nine months. 2 The Tribunal's reasons record that the appellant, when questioned further about his arrest, said that he was arrested twice. He also said that he was arrested "each year" right before the anniversary of the destruction of the Babri Masjid.

Grounds of appeal 3 The Tribunal affirmed the first respondent's decision not to grant a protection visa to the appellant. He appears in person in this Court assisted by an interpreter to appeal a judgment of Lloyd-Jones FM dismissing his application for judicial review of the Tribunal's decision (SZCBQ v Minister for Immigration & Anor [2006] FMCA 735). 4 The appellant filed a document titled "Applicant's Submissions" which sets out a number of matters in general terms in a form that this Court has seen before in relation to other appellants. The document bore little or no relation to the grounds in the notice of appeal which are also in general, non particularised terms. 5 I asked the appellant whether he could add anything to the written submissions. He referred to two factual matters: first, that if he returns to India his life will be in danger and secondly, if he were to relocate within India from Tamil Nadu he will have language problems and difficulties. These matters are factual matters that do not assist the appellant in his appeal and are not directly relevant to the matters raised in his written submissions. 6 Mr Smith appears for the Minister and has assisted the Court by analysing the written submissions and isolating from them what might be called grounds of appeal. The appellant has confirmed that, in his analysis, Mr Smith did not leave out any grounds or, I infer, any detail in the submissions upon which the appellant wishes to rely. 7 The Minister takes no objection to the fact that the grounds of appeal now raised by the appellant were not raised in the notice of appeal nor, as to some, before the Federal Magistrate. Accordingly, I will deal with the six grounds of appeal as identified by Mr Smith and confirmed by the appellant as valid grounds of this appeal.

(1) The Application of Muin and Lie 8 The appellant submits that he was misled and that the facts of Muin v Refugee Review Tribunal & Lie v Refugee Review Tribunal (2002) 190 ALR 601 are the same as the facts in his case. It is apparent that that is not so. The Tribunal in its decision specifically referred to the matters that were and were not before it. The Tribunal observed 'for the avoidance of doubt' that the departmental file did not contain the documents referred to in the decision under review under the heading "Part B: Evidence Before Me" but that documents specifically referred to in the decision were otherwise available and had been taken into account by the Tribunal in so far as they were considered to be relevant. Further, there is no evidence in the present case that the appellant was misled by anything said or done by the Tribunal in respect of those documents. Accordingly, Muin has no application to the present case and the ground of appeal is rejected.

(2) Section 66 of the Migration Act 9 The appellant alleges that '[t]he Tribunal does not have the power to take this decision in to effect' because subsections 66(1) and (2) of the Migration Act 1958 (Cth) ('the Act') were not observed. The Minister is required to notify the applicant for a protection visa of her decision to grant or refuse the visa in accordance with s 66 of the Act. 10 Mr Smith submits that s 66 has "no part to play" in this appeal. I agree. The decision under review by the Tribunal is dated 17 October 2002 and the application to the Tribunal for review was received by the Tribunal on 13 November 2002. The application includes an acknowledgment by the appellant of receipt of the delegate's decision. It follows that the application to the Tribunal was validly made within the relevant time limits (s 412(1)(b) of the Act). The Tribunal had jurisdiction to conduct its review and no relevant error is established. 11 In any event, a failure by the Minister to give notification of her decision does not affect the validity of that decision (s 66(4)), nor the decision of the Tribunal.

(3) Section 424A of the Act 12 Before the Federal Magistrate Counsel for the Minister raised as an issue whether there had been a failure by the Tribunal to comply with s 424A of the Act. It is accepted that the Tribunal referred to and relied upon information in the material in support of the appellant's application for a protection visa adversely to him. Standing alone that would mean that there had been a contravention of s 424A(1) of the Act as no written notice of particulars of that information was given to the appellant. However, the appellant, in his application to the Tribunal under the heading '[y]our Reasons for making this application', stated 'Please Refer my Statement Claim of my Refugee Application'. I am satisfied that in so doing he intended to and did refer to a document entitled 'Statement Claim of [the appellant]' which accompanied his protection visa application and is included in the Appeal Book. 13 In those circumstances, for the reasons given in VUAV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1271 at [10] to [13] and NBCM v Minister for Immigration & Multicultural Affairs [2006] FCA 1150 at [13], the "Statement Claim" and the information therein fell within s 424A(3)(b) of the Act. I note that an application for special leave to appeal to the High Court in VUAV was refused on 12 April 2006 (VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA Trans 183). Gummow J specifically said on that occasion that'no error is apparent in Merkel J's decision upon the applicability of section 424A'. On that basis special leave was refused.

(4) Section 430 of the Act 14 Section 430(1) of the Act provides that the Tribunal must, when making its decision on review, prepare a written statement in accordance with s 430(1) and, once that statement is prepared, give to the Secretary certain documents in accordance with s 430(3). The Tribunal's obligations pursuant to s 430(1) were considered by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. No factual basis for any contravention of s 430 is made out. The ground of appeal has not been substantiated.

(5) The ignoring of relevant evidence 15 The appellant's written submissions assert that he supplied additional evidence to the Tribunal to which it paid no attention. The appellant also asserts generally and without particularisation that the Tribunal ignored relevant evidence including independent evidence. When I asked the appellant what additional information he was referring to he said that he had given no additional information to the Tribunal by way of additional evidence or documentation. 16 It is clear that the claims made by the appellant to the Tribunal were based upon his religion and political beliefs. The Tribunal considered both those claims. It did not accept the appellant's claim as to his political beliefs. It accepted that he was a Muslim but for the reasons which it gave and which were open to on the evidence before it, the Tribunal was not satisfied that that was sufficient to give rise to a well-founded fear of persecution. The Tribunal dealt with the appellant's claims, identified its findings on the questions of fact it considered to be material (Yusuf at [69]) and was not obliged to refer to each and every aspect of the evidence before it in drawing its conclusion. No jurisdictional error is established on this basis.

(6) Bad faith 17 The appellant has not given any evidence or any particulars sufficient to ground an accusation of bad faith, which is a serious allegation that should not be raised without a proper basis. Nor has the appellant pointed to any matter that would lead to any conclusion of bad faith, bias or apprehended bias or of a denial of procedural fairness. To the contrary, a reading of the Tribunal's decision makes it apparent that the Tribunal took detailed account of the evidence of the appellant and considered it before coming to its conclusions.

Conclusion 18 Neither the notice of appeal nor the applicant's submissions raise an arguable ground of appeal. It follows that the appeal should 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 Bennett.

The Appellant appeared in person. Counsel for the First Respondent: J Smith

Solicitor for the First Respondent: Sparke Helmore Lawyers

Date of Hearing: 30 October 2006

Date of Judgment: 30 October 2006

Migration Act 1958(Cth)s 424A(3)(b)

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