SZLPA v Minister for Immigration and Citizenship

Federal Court of Australia|2008-11-07|Before: Reeves J

INTRODUCTION 1 This is an appeal against a judgment of Federal Magistrate Scarlett delivered on 20 March 2008 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal's decision was handed down on 27 September 2007 and affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant. 2 On 24 July 2008, I granted leave to the appellant to file his notice of appeal out of time: see SZLPA v Minister for Immigration and Citizenship [2008] FCA 1095. The background to this matter is set out in that decision but, for convenience, I will summarise it below.

BACKGROUND - SUMMARY OF FACTS 3 The appellant is a citizen of India who came to Australia on a cricket tour. The Federal Magistrate described the circumstances of his application for a protection visa as follows (at [4] of SZLPA v Minister for Immigration & Anor [2008] FMCA 414): 'the applicant arrived in Australia as part of a group from the Rajasthan Indoor Cricket Federation. The applicant and other members of his group met with a migration agent who submitted a statement in respect of this applicant and 21 other people. That statement was received by the Department of Immigration and Citizenship on 30th April 2007. It accompanied an application for a protection visa submitted by the applicant'. 4 The statement referred to above was a generic statement submitted on behalf of the group of cricketers on the day their temporary resident visas expired. The statement also alleged that: "their brief claim is (that) they do not have civil and political freedom in India. They suffer from poverty and starvation and all these happened as a result of their particular social group 'farmers from Rajasthan'". 5 The appellant attended a hearing before the Tribunal on 8 August 2007 conducted by videoconference from a country town. At that hearing the appellant stated that although he was from a poor farming family he did not claim to fear harm on that basis. Rather, he claimed that he had become involved in an inter-caste extramarital affair which had led to him being ostracised by his community, as well as causing problems for his family, so that his father had arranged for him to leave India. The appellant also claimed that he would be unable to relocate within India as his community was scattered 'everywhere'.

THE TRIBUNAL'S DECISION 6 While the Tribunal was willing to accept that the appellant held a subjective fear of being further ostracised, it was not satisfied that this, without more, could meet the threshold of 'serious harm' for Convention purposes. The Tribunal reached a similar conclusion on the appellant's claim to have been a victim of poverty in Rajasthan, as that situation did not appear to be primarily attributable to his membership of a particular social group; in that there was no evidence to suggest that 'farmers from Rajasthan' were treated differently from other citizens of India. 7 In relation to the appellant's claims that he experienced a lack of civil and political freedoms, the Tribunal referred to country information on India's democratic system and was not satisfied that on return to India the appellant would be prevented from exercising his rights in any way that could amount to 'serious harm'. The Tribunal therefore determined that the appellant did not hold a well-founded fear of Convention-related persecution in his home country and affirmed the decision of the delegate.

THE FEDERAL MAGISTRATE'S DECISION 8 The appellant then sought judicial review of the Tribunal's decision in the Federal Magistrates Court by an application filed on 2 November 2007. In his application, the appellant alleged that the Tribunal had failed to accord him natural justice, had denied him the proper application of law, and had failed to follow due procedure. The appellant attended a hearing before Federal Magistrate Scarlett on 20 March 2008 and made oral submissions. He stated, among other things, that while he could not point to a particular breach, he did not get a proper decision from the Tribunal. He also complained that the Tribunal had made its decision 'very soon'. 9 The Federal Magistrate was unable to detect any jurisdictional error in the Tribunal's decision. His Honour held that the Tribunal had complied with the scheme of procedural fairness set out in Part 7 Division 4 of the Migration Act 1958 (Cth) ('the Act'). In relation to s 425 of the Act, his Honour held that the Tribunal had invited the appellant to a hearing, which he had attended by video conference with the assistance of an interpreter. In relation to s 424A of the Act, his Honour observed (at [34] of his reasons) that this: 'was not a case where any claim was made of a breach of s 424A of the Migration Act and there does not appear to me to be any breach in any event'. 10 His Honour was satisfied that the Tribunal had considered and rejected each of the claims made by the appellant in his protection visa application, as well as the subsidiary claim raised at the hearing, and found himself unable 'to identify any denial of natural justice. I am unable to identify any procedural breach by the Tribunal'. Having 'looked at the decision carefully…[to see]...if there is any jurisdictional error, whether argued by the applicant or not', his Honour dismissed the application for want of jurisdictional error.

THE PRESENT APPEAL 11 The notice of appeal the appellant was given leave to file in this Court contains the following grounds: 1. The Honourable Federal Magistrates Court erred in interpreting the construction of s.424A of the Migration Act 1958 ('the Act') 2. His Honour failed to determine that the purpose of s.424A was not served in the proceeding of this applicant. 3. The Honourable Court also erred in law determining that the Refugee Review Tribunal ('the Tribunal') was in breach of procedural fairness 12 The appellant's notice of appeal stated that additional details would be provided later however, none has been provided. 13 At the hearing of the appeal before me on 5 November 2008, the appellant appeared in person, unrepresented, but assisted by an interpreter. Mr Markus appeared for the first respondent.

CONSIDERATION 14 Grounds 1 and 2 both allege a breach of s 424A. The appellant has not provided any particulars of the alleged breach e.g. the information he alleges should have been provided under s 424A and why that information should have been provided. As noted above, no such allegation was raised before the Federal Magistrate. Nonetheless, his Honour considered the possibility and could not identify any breach of s 424A. Having reviewed the Tribunal's decision myself, I consider the Federal Magistrate was correct in reaching that conclusion. It follows that, these two grounds have no merit and must therefore be rejected. 15 Ground 3 alleges a breach of procedural fairness - a similar allegation was made before the Federal Magistrate. Again, the appellant has not provided any particulars of the alleged breach. His Honour examined the procedures followed by the Tribunal and could not detect any breach (see [29] to [33] of his reasons). Again, having reviewed the Tribunal's decision myself, I consider the Federal Magistrate was correct in reaching that conclusion. It follows that, this ground also has no merit and must therefore be rejected.

CONCLUSION 16 For these reasons, this appeal must be dismissed. I will hear the parties on the question of costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate: Dated: 7 November 2008 Appellant: In person

Solicitor for the First Respondent: Australian Government Solicitor

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