SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2006-02-14|Before: Bennett J

REASONS FOR JUDGMENT 1 The appellants are citizens of India. The appellant wife did not claim to be a refugee in her own right and applied as a member of the appellant husband's family unit. The appellant husband ('the appellant') claimed a well-founded fear of persecution based on his religion, Hinduism, and his political opinion. 2 The judgment of Federal Magistrate Nicholls, delivered on 21 September 2005 dismissing an application to review the decision of the Refugee Review Tribunal ('the Tribunal'), contains a thorough summary of the background of the matter, its procedural history and the basis of the Tribunal decision. In brief, the appellant claimed that, as he was an active supporter of the Congress party, the appellants' lives were at risk in India from supporters of the opposition party, the BJP. 3 The appellant appeared in person assisted by an interpreter. He did not file any written submissions. The amended notice of appeal contains twelve "grounds". I do not propose to set them out in detail. Two grounds assert, without particulars, that the Federal Magistrate failed to find jurisdictional error in the Tribunal decision. Two grounds refer to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 79 ALJR 1009 without particularisation of how that case applies to the appellant. Three grounds raise merits review. One ground refers to s 474 of the Migration Act 1958 (Cth) ('the Act') and is not readily comprehensible. One ground raises an asserted failure to disclose unspecified adverse country information; such information would come within s 424A(3)(a) of the Act so that there is no established breach of the requirements of s 424A(1) for this reason. One ground says that a list of authorities is attached; it is not. One ground says that the appellant will provide more details in a written statement; he did not.

The basis for the Tribunal decision 18 The appellant did refer to SAAP. I therefore turn to consider whether by reason of SAAP and Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27, the Tribunal was in breach of s 424A(1) of the Act on the basis that information that formed part of the reason for affirming the decision of the delegate was information that formed part of the visa application and was not information within s 424A(3)(b) of the Act. 19 Mr Johnson, who appears for the first respondent, submits that the appellant adopted the information in the visa application for the purposes of his application to the Tribunal. He relies upon the appellant's statement in his Tribunal application 'I am seeking a more favourable decision from the Refugee Review Tribunal as my claims are genuine'. He submits that, as there were no separate claims made to the Tribunal, the appellant adopted his claims as set out in the visa application. There is logic in that submission. I accept that the claims in the visa application formed the claims made to the Tribunal and that the information therein was information within ss 424A(3)(b) of the Act. Although it is not determinative, the Federal Magistrate noted at [19] that the appellant confirmed to his Honour that he had put this material before the Tribunal. 20 In addition, the Tribunal wrote to the appellant on 23 March 2004, informing him that it had asked the Department to send its file to the Tribunal so that the Tribunal could review his application for a protection visa. It also stated that a Member of the Tribunal would look at the information that the appellant and the Department had given to it and information about the appellant's country. In the letter from the Tribunal to the appellant of 23 April 2004, the Tribunal said 'the Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone'. 21 In its decision, the Tribunal said that it had before it the Department's file, which included the protection visa application. It then set out information in the protection visa application. It referred to the letter of 23 April and the first and second hearing dates as well as the advice that the appellant did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision. 22 The Tribunal noted that the appellant had not availed himself of the opportunity to attend the hearing and expand on his claims. Given the 'vague and limited evidence in the application, the Tribunal [was] unable to accept that the [appellant] and family members were involved in the activities of the Congress Party or that as a result of these activities he incurred the enmity of members or supports of the BJP'. The Tribunal found that the appellant did not provide sufficient information in his application for the Tribunal to be satisfied that there was a real chance that he would suffer serious harm if he returned to India and gave examples of deficiencies in the information which could have been discussed at a hearing. 23 As was said by Hely J in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [16], by Bennett J in SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 at [17] - [19] and [28] - [33] and by Allsop J in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29], the Tribunal was identifying the deficiencies or inadequacies in the appellant's case. It was not relying on information communicated to or received by the Tribunal but setting out its thought processes. There was no information that the Tribunal was obliged to give to the appellant by reason of s 424A(1) (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]). 24 As Mr Johnson submits, the Tribunal was not under any common law obligation to telegraph its reasons or evaluation for comment (ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592).

Conclusion 25 There has been no error established in his Honour's reasons. Given an opportunity to identify any error the appellant was unable to do so. The appeal should be dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Migration Act 1958(Cth)ss 424A, 425, 425A, 427, 474

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