SZJLP v Minister for Immigration and Citizenship

Federal Court of Australia|2008-02-28|Before: McKerracher J

REASONS FOR JUDGMENT 1 This is an appeal against a decision of a Federal Magistrate (Lloyd-Jones FM) made on 7 November 2007 (SZJLP & Anor v Minister for Immigration & Anor [2007] FMCA 1870) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 7 September 2006. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (as it was then known) refusing to grant protection visas to the appellants.

BACKGROUND 2 The appellants are husband and wife and citizens of India. They arrived in Australia on 10 December 2005. On 1 February 2006 the appellants lodged an application for protection visas with the Department of Immigration and Multicultural Affairs (as it was then known). Only the first appellant (the appellant) made claims under the Convention Relating to the Status of Refugees 1951 and amended under the Protocol Relating to the Status of Refugees 1967 (the Convention), with his wife relying on membership of his family unit. A delegate of the first respondent refused the application for protection visas on 12 April 2006. On 5 May 2006 the appellants applied to the Tribunal for a review of that decision. 3 The appellant stated that he had a well-founded fear due to membership of the Bharatiya Janata Party (BJP) and for being Hindu. He also claimed to fear harm because he saved his boss from being killed. 4 In his protection visa application, the appellant in essence claimed poverty as the reason for leaving India. However, on 30 June 2006, the appellant stated his claims had been incorrectly stated by the person assisting him. 5 He forwarded a statement which he indicated were his true claims to the Tribunal. The statement indicated the appellant claimed to be Hindu and was a member of the BJP. He stated that in 1992 and 2000 there were inter-religious riots and unrest (namely in response to the Babri Masjid and Godharakand incidents respectively) wherein the appellant and his family were attacked by Muslims. This resulted in the appellant being injured and unable to work. He claimed he complained to police who did not take any action. 6 At the hearing before the Tribunal, the appellant claimed that riots in response to incidents in 1992 and 2002 (the Babri Masjid and Godhra train incidents) caused Muslims to attack the tea shop he worked in as a salesman during that time. During that incident Muslims also injured his employer, who was Hindu and a member of the BJP. The appellant indicated he intervened to save his boss but this resulted in his hands being injured. The appellant claimed the shop was closed in 2003 due to continual threats. 7 The appellant stated after that incident he continued to receive telephone threats. The appellant claimed he left the shop and went to his village to work as a farmer, but his attackers came to his village and tried to kill him.

TRIBUNAL'S DECISION 8 The Tribunal accepted various foundational elements of the appellant's claims, including: · The appellant was Hindu; · The appellant was a member of the BJP; · That he had worked for a long period in a tea shop; · The shop was vulnerable to attacks by Muslims during the rioting; · The appellant defended his employer during an attack in 2003 following the Godhra train incident; and · The appellant had been subject to adverse interest by local Muslims. 9 However, the Tribunal noted that notwithstanding the threats to him, the appellant had not suffered actual harm at the hands of the people threatening him since the incident in 2003. The Tribunal noted on the evidence that if the Muslims were intent on harming him, they had ample opportunity to do so. The Tribunal was satisfied there were employment opportunities for the appellant in Hindu areas, albeit at a reduced salary. There was no evidence he was denied the capacity to earn a livelihood. 10 The Tribunal found that although the appellant was generally credible, it found he had exaggerated the threats to him by Muslims. In relation to the injury sustained in defending his employer, it found that the essential and significant reason was not for being Hindu or a member of the BJP. The Tribunal accepted the appellant had received threats and harassment but the harm suffered was not serious harm which amounted to persecution. It found he had not suffered harm from May 2005 until December 2005 when he left India. The Tribunal consequently affirmed the delegate's decision.

FEDERAL MAGISTRATE'S DECISION 11 On 29 September 2006 the appellant filed an application in the Federal Magistrates Court which challenged the following findings by the Tribunal:

That the appellant had exaggerated the claims of threats when it had found he was generally credible.
That the essential and significant reason for the harm was not religion or political opinion.
That the verbal threats did not amount to serious harm. 28 FEBRUARY 2008

NEW SOUTH WALES DISTRICT REGISTRY NSD 2294 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

JUDGE: MCKERRACHER J DATE OF ORDER: 28 FEBRUARY 2008

The appeal be dismissed.
The appellants pay the costs of the first respondent to be agreed or taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2294 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

FEDERAL MAGISTRATE'S DECISION 11 On 29 September 2006 the appellant filed an application in the Federal Magistrates Court which challenged the following findings by the Tribunal:

That the appellant had exaggerated the claims of threats when it had found he was generally credible.
That the essential and significant reason for the harm was not religion or political opinion.
That the verbal threats did not amount to serious harm. 12 The Federal Magistrate found the grounds sought merits review and noted the Tribunal in its decision indicated that it was aware of the test in s 91R of the Migration Act 1958 (Cth) (the Act)

GROUNDS OF APPEAL 13 The notice of appeal filed on 20 November 2007 asserts the Tribunal breached s 424A of the Act by failing to disclose certain adverse information. 14 Clearly the decision in the Tribunal was a privative clause decision as defined by s 474(2) of the Act. The effect of s 474 is to preclude judicial review of all decisions under the Act except those vitiated by jurisdictional error (Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476). 15 The Federal Magistrate held correctly that the application before him was, in essence, a request that the merits of the Tribunal's decision be reviewed. Correctly, his Honour rejected that request. 16 On this occasion the appellant has raised a new ground which was not raised before the Federal Magistrate in the Court below. 17 For a new ground to be relied upon, the appellant must demonstrate that it is expedient and in the interests of justice for that new ground to be raised. Factors which may be relevant to either of these heads include the prospects of success on appeal on the new ground, the reason why the ground was not previously raised, prejudice to the other party and the general integrity to the appeal process. 18 No attempt has been made to articulate what adverse information was used by the Tribunal which was not disclosed in advance to the appellant. It is not evident from the reasons of the Tribunal that there is any such adverse information. 19 There is no obligation to reveal the Tribunal's impression of his credibility. The following passage from the High Court's decision in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] demonstrates that this ground of appeal cannot succeed: Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information" ([2004] FCAFC 123; (2004) 206 ALR 471 at 476-477, citing Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54]; Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at 428; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266; (2002) 124 FCR 276 at 282-284. "does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc". If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. 20 The ground of appeal cannot succeed.

CONCLUSION 21 The appeal must be dismissed. The appellants are to pay the costs of the first respondent to be agreed or taxed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

The First Appellant appeared in person and represented the Second Appellant

Counsel for the Respondents: B O'Brien

Solicitor for the Respondents: DLA Phillips Fox

Date of Hearing: 27 February 2008

Date of Judgment: 28 February 2008

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