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[2007] FCA 1131
Federal Court of Australia
2007-08-03
Edmonds J
Original judgment source is linked above.
INTRODUCTION 1 This is an appeal from a judgment of the Federal Magistrates Court (Smith FM) dismissing an application for review of a decision of the second respondent ('the Tribunal') affirming a decision of a delegate of the first respondent ('the Minister') refusing an application for a protection visa.
BACKGROUND 2 The appellants arrived in Australia on Indian passports on 4 December 2002 and lodged applications for protection visas on 24 December 2002. Only the first named appellant (the husband) made specific claims to be entitled to protection obligations under the Refugees Convention. He claimed to fear persecution in Bangladesh for reasons of his membership and support of the Awami League and also because he was part of the Hindu minority in that country. He also claimed that he faced persecution in India on account of having married a woman from a lower caste than his own. On 29 July 2003, a delegate of the Minister refused to grant the visas and on 25 August 2003 the appellants applied to the Tribunal for review of that decision. 3 On 21 January 2004, the Tribunal handed down a decision affirming the delegate's decision but this decision was set aside by consent by orders made in the Federal Magistrates Court (Scarlett FM) on 7 March 2006. TheTribunal, differently constituted, invited the appellants to a further hearing which they attended and gave evidence and presented arguments relating to the issues arising upon review of the decision. On 30May 2006, it made its decision to affirm the delegate's decision.
TRIBUNAL'S DECISION 4 The Tribunal found that the husband was a citizen of India and had the right to return and live there. For this reason it considered only his claims to fear persecution in respect of that country. However, it found that his claims to fear harm in India were unconvincing and that they had no support in the independent evidence. For those reasons, the Tribunal found the appellants did not meet the criteria for the grant of a protection visa and affirmed the decision of the delegate.
PROCEEDINGS IN THE COURT BELOW 5 His Honour below dealt with the application on two bases: first, the issues raised by the amended application before him and secondly, the issues that his Honour saw arising from the decision of the Tribunal. As to the first of these, his Honour considered that the grounds in the amended application raised only arguments on the merits of the Tribunal's conclusions that the appellants were Indian nationals (at [33]). There was also a general allegation of a failure to comply with s 424A of the Migration Act 1958 (Cth) ('the Act') which was rejected by his Honour on the basis that there was an implicit suggestion that the Tribunal was obliged to put to the appellants in a written invitation for comment its reasoning processes as distinct from information which formed part of its reasons and that such a suggestion misconceived the effect of the section (at [35]). His Honour also rejected the allegation that the Tribunal had overlooked claims made by the appellants (at [36]). 6 As to the second basis, the first issue considered by his Honour to arise from the material was whether the Tribunal properly addressed the question posed by the Convention relating to the country of the appellants' nationality. His Honour accepted the submission that the Tribunal's finding in relation to the appellants' citizenship dealt with this question (at [24]). The second issue considered by his Honour in this respect was whether the Tribunal appreciated that the issue of nationality was to be determined by it as an issue of fact on all the relevant evidence. His Honour concluded that the Tribunal did this and, as already noted, did make a finding of fact on nationality referring not only to the Indian passport in that respect but also the appellant's places of residence in that country and his use of his Indian passport to travel through Indian immigration controls on visits to Bangladesh or other countries (at [27]). 7 The third issue was whether the Tribunal considered whether the appellant could enjoy effective protection in India, his country of nationality. His Honour concluded, at [31], that the Tribunal's findings relating to the potential for persecution in India for reasons of ethnicity and religion were not only open to it but sufficiently showed that the Tribunal addressed the issues required by the Convention and s 36(2) of the Act. 8 For these reasons, his Honour concluded that there was no jurisdictional error affecting the decision of the Tribunal and so dismissed the application.
ISSUES ON APPEAL 9 The notice of appeal raises eight grounds that may be condensed into the following:first, whether the Tribunal failed to afford procedural fairness to the appellants; second, whether there was a breach of s 424A of the Act;third, whether the Tribunal failed to consider a number of the appellants' claims, namely, those relating to membership of a scheduled caste and harassment for reasons of political opinion and religion; and finally, whether a number of findings were made without any evidence.
ANALYSIS 10 Theclaim that there was a denial of procedural fairness is based on an assertion that the Tribunal did not give the appellants the opportunity to further explain the husband's inability to return to India prior to refusing their claim and also its failure to consider his inability to return since he was not an Indian citizen. 11 The Minister submits that it is clear that the appellants were well aware of the possibility that the Tribunal would find that the husband was a citizen of India and that his claims would be assessed with regard to India as his country of nationality. First, the question of his citizenship was raised by the first Tribunal at the hearing conducted by it on 29 October 2003. Second, the first Tribunal decision was based upon a finding that the appellants were Indian citizens and nationals. Third, this question was raised expressly in the letter dated 27 April 2006 sent to the appellants for their comment. The appellants responded to this letter by letter dated 24 May 2006. Finally, at the hearing conducted by the second Tribunal on 10 May 2006 the Tribunal again questioned the appellants about the husband's nationality. In light of these matters, the Minister submits that there can be no question that the appellants were aware that the husband's nationality was in issue on review of the delegate's decision and also that they had the opportunity of giving evidence and presenting arguments in relating to that issue. I agree. There was no denial of procedural fairness in this respect and no breach of s 425. 12 The second aspect of this ground is a complaint that the Tribunal made a factual mistake regarding a particular claim made by the appellants. Given that the Tribunal's finding that the appellant was a citizen of India was based upon the evidence put forward by the husband himself, the finding was open to it and was not indicative of any jurisdictional error. The first ground must be rejected. 13 The second ground alleged is a breach of s 424A. It is asserted that there was such a breach because the Tribunal did not give the appellants the opportunity to respond to adverse information suggesting the husband could return to India without persecution and also that it rejected the husband's credibility due to inconsistencies in his evidence. The adverse information relied upon by the Tribunal in this respect was, as already noted, information provided by the appellants for the purposes of review. Accordingly, it fell within s 424A(3)(b) of the Act and gave rise to no obligation under s 424A(1). The purported 'inconsistencies' relied upon by the Tribunal also did not give rise to any obligation under s 424A(1). First, the Tribunal did not in fact rely upon any inconsistencies in the appellants' evidence; and second, such inconsistencies would not be 'information' within the meaning of that term in s 424A(l) but rather only the Tribunal's appreciation of the evidence, in other words, its thought processes: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]. For these reasons, his Honour below was correct to reject the ground of breach of s 424A and the second ground on the appeal must be rejected. 14 The third ground on the appeal is that the Tribunal failed to consider claims made by the appellants in support of their application for a protection visa. At first instance it was argued in support of this ground that the Tribunal failed to consider that the appellants' claims of persecution in India related to their marital status. The answer to this assertion is that the Tribunal considered the claim but rejected it. The second instance is a purported failure to consider the persecution of members of the Scheduled caste in India. Once again, the Tribunal considered this claim and rejected it. The third instance is the Tribunal's failure to consider the husband's claim in relation to political and religious beliefs in Bangladesh. The Tribunal disregarded those claims as irrelevant based on its finding that the appellants had the right to return to and live in India because they were Indian citizens. 15 The question to be answered by the Tribunal was whether the appellants satisfied the criteria for a grant of a protection visa. In respect of the husband, the relevant criterion was that the Tribunal be satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: s.36(2)(a). This means that the husband must be found to be a refugee within the meaning of the Convention. In order to be a refugee within the Convention the person must satisfy the definition in 1A(2) of the Convention which is relevantly: 'Owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.' 16 If a person has no well-founded fear of being persecuted for one of the relevant reasons in his country of nationality, he cannot be a refugee. It does not matter for this purpose whether or not the appellant has more than one nationality: Koe v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 508. Here, the Tribunal found that the husband's country of nationality was India. Accordingly, once it found that the husband had no well-founded fear of persecution in India then he could not satisfy the definition of refugee and could not meet the criteria for the grant of a protection visa. This meant, as the Tribunal found, that any claims relating to Bangladesh were irrelevant for the determination of the question posed by the Act. This ground must be rejected. 17 The final ground is that the Tribunal made findings of fact that were not available on the evidence. The first of these findings relate to the husband's claims of fear of harm in Bangladesh. As already noted, the Tribunal did not make any findings in this respect and was not required to do so, and so could not have made the error alleged. The second is that the Tribunal's finding of credibility was not open on the evidence. Contrary to the implicit assertion in this ground, the Tribunal did not make any findings rejecting the credit of the appellants as witnesses. The third particular of this ground is that the Tribunal failed to consider that the risk of harm and persecution were politically, socially and religiously motivated. This is not in fact a particular of this ground but in any event must fail because the Tribunal found that the fear of harm was not well-founded and accordingly the question of the reasons for the infliction of such harm is not relevant to its determination of the issues. 18 The Minister submits that his Honour below was correct to find that there was no jurisdictional error in the Tribunal's decision and the appeal ought to be dismissed. I agree. 19 The appeal must be dismissed with costs. I certify that the preceding nineteen (19) numbered Paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.
Solicitor for the Appellants: The appellants appeared in person
Solicitor for the First Respondent: Blake Dawson Waldron
SZCRX
Minister for Immigration & Citizenship
(1997) 74 FCR 508