SZJQQ v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The appellant in this matter lives in Griffith, New South Wales. Two days before the date scheduled for the hearing of this appeal he faxed a medical certificate to the respondent, that certificate merely stating that he was seen at the Griffith Hospital the preceding day for a medical condition and was unfit for work until 2 August 2007. An accompanying letter indicated that it was unlikely that he would be attending the hearing but the letter itself did not seek an adjournment, merely that account should be taken of his physical situation when the matter was heard. 2 Having regard to the history of this matter, i.e. (1) the appellant did not attend the hearing of the Refugee Review Tribunal notwithstanding he indicated he would be attending; (2) that he did not file written submissions before the Federal Magistrate; (3) contrary to directions given, he has not filed written submissions in this matter; and (4) the particular grounds relied upon by the Tribunal in refusing the grant of his visa, I intend to proceed to hear the matter in his absence: see O 52 r 38A(1)(d) of the Federal Court Rules. 3 As is well accepted, the grant of a protection (Class XA) visa turns upon whether or not the Minister (hence on review the Refugee Review Tribunal) attains the state of satisfaction prescribed in s 66 of the Migration Act 1958 (Cth): see SJSB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 225 at [16]. In the present matter the Tribunal concluded that on the evidence provided to it, it could not be satisfied that the principal applicant had a well founded fear of persecution for a Convention reason - hence his and his spouse's applications were refused. As the appellant husband alone put forward substantive claims, for convenience, I will refer to his appeal alone. An application to the Federal Magistrates Court for review of the Tribunal's decision was dismissed. No error in his Honour's decision has been disclosed in this appeal. 4 The only material before the Tribunal that bore on the question of well founded fear was contained in a just more than three page statement annexed to the visa application. On rejection of the application by the Minister's delegate, a review application was made to the Tribunal, but no material was filed in support of that application. 5 The Tribunal's s 425 invitation to the applicant to attend the hearing made plain that the Tribunal was unable to make a decision in his favour on the material it then had before it. In response to that invitation the appellant indicated that he would attend the tribunal hearing. He failed to do so and he did not contact the Tribunal regarding that failure. As it was entitled to do under s 426A of the Act, the Tribunal decided to make its decision without taking any further action to enable the appellant to appear before it. The Tribunal's reasons and conclusions in reaching its decision can be set out in full. They are brief and its description of the claims which it had earlier set out in its reasons were sufficient for the purpose: "The applicant claims he is a citizen of India. He claims he was an active member of VHP in India which attracted the adverse interest of Muslim extremists. He claims that on three occasions he was attacked by SIMI activists. The applicant claims that he sought assistance from the authorities but they could not do anything to assist him. He further claims that he cannot avoid the harm he anticipates by relocating within the country because influential people, with international help and backing, are seeking to harm him. He claims family and friends convinced him to leave the country and he decided to seek protection in Australia. The applicant presented his claims poorly with only one vague statement to the Department and no information in support of the review application. The applicant did not provide any meaningful details regarding his involvement with VHP or his difficulties with Muslim extremists. He stated that the police did not do anything to assist him but he did not provide meaningful details regarding his dealings with the police. The applicant made a vague reference to influential persons seeking to harm him. However, he did not identify the influential persons or clearly state why they wanted to harm him. The Tribunal cannot be satisfied on the information it has that the applicant was indeed an active and committed VHP member or that he attracted the adverse interest of Muslim extremists. The Tribunal also cannot be satisfied on the evidence provided by the applicant that the authorities in India were either unable or unwilling to assist him. The applicant claims he is an active and committed member of the VHP. However, as with all his other claims, he neglected to provide sufficient details and meaningful information to support the claim. The Tribunal has no information as to what if any involvement the applicant currently has with VHP or whether he intends to be involved with the group in the reasonably foreseeable future. Accordingly, the Tribunal cannot be satisfied on the available information that in the reasonably foreseeable future the applicant will be implicated in VHP activities or any other activity which will attract the adverse interest of either Muslim extremists, the authorities, or anyone else in India. The applicant was put on notice that the Tribunal was not satisfied by the evidence he provided in support of the application. He did not provide further information despite ample opportunity to do so nor has the applicant given the Tribunal the opportunity to explore his claims at a hearing. Many questions regarding his previous and future circumstances remain unanswered. In the absence of further information, and in view of the above findings, the Tribunal is not satisfied by the evidence that the applicant has a well-founded fear of persecution in India for reasons of political opinion or any other Convention reason." 6 The Federal Magistrate correctly characterised the basis of his decision as being that the Tribunal indicated it did not have enough information to make positive findings: "its decision is that because too many questions remain outstanding, it could not reach the level of satisfaction necessary to conclude that Australia has protection obligations to the applicant": [2007] FMCA 449 at [11]. 7 To anticipate my own conclusion, that characterisation of the decision is unexceptionable. The grounds of appeal relied upon before the Federal Magistrate both misstated the Tribunal's decision and betrayed a misunderstanding of it. Four grounds were raised. All of them were rejected, again properly in my view. I do not intend to set out my reasons for that conclusion because the ground of appeal to this Court is quite unrelated to any of the grounds raised before the Federal Magistrate. The one ground relied upon in the Notice of Appeal is that the Federal Magistrate failed to find the Tribunal's decision was in breach of s 424A of the Migration Act. This is particularised as "there was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 44A(1)". 8 This again is a misrepresentation of the nature of the Tribunal's decision to which I earlier referred. The Tribunal did not make positive findings or "use adverse information" to affirm the delegate's decision. Rather it was unable to be satisfied as to the veracity of the applicant's claims. The reasons for this related to identified gaps, defects and lack of detail and specificity in the evidence before the Tribunal. As the High Court recently indicated in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] affirming the observation of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477, such gaps, defects etc are not encompassed by the word "information" as used in s 424A(1) of the Migration Act. To the extent that the appellant's Notice of Appeal implied that this was the adverse information allegedly relied upon by the Tribunal, there was no appellable s 424A error committed by the Tribunal. No other allegedly adverse information has been pointed to by the appellant and it clearly was not the case that other adverse information was used by the Tribunal to affirm the decision under review. No written submissions, as I have already indicated, were filed in support of the ground of appeal. 9 No error in the learned Federal Magistrate's decision having been established, I will order that the appeal be dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.