SZLPJ v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 The appellants are citizens of India who arrived in Australia on 11 May 2007. On 14 May 2007, the appellants lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 29 May 2007. On 20 June 2007, the appellants applied to the Refugee Review Tribunal for a review of that decision. The Refugee Review Tribunal affirmed the delegate's decision not to grant the protection visa on 11 October 2007. 2 On 5 November 2007, the appellants applied to the Federal Magistrates Court, seeking in effect judicial review of the decision which had been made by the Refugee Review Tribunal. That application came before a federal magistrate on 2 July 2008. On that day, the learned federal magistrate entertained a number of grounds said to make out the present appellants' right to judicial review. Having heard argument, the learned federal magistrate dismissed the present appellants' application and ordered them to pay the costs of the Minister fixed in the sum of $5,000. From that determination by the federal magistrate the appellants now appeal. 3 It is necessary to say a few brief words about the proceedings before the Refugee Review Tribunal. The first appellant is a man who was born in India in 1962 and the second appellant is his wife, who was born in 1973. The appellants claim, as the basis for their protection visa, that they have suffered persecution in their home state in India, Kerala. The persecution is said to arise from the fact that they are both Hindu and also because they are supporters of the Barathya Janatha Party ("BJP"). The Refugee Review Tribunal considered the claims made by the appellants in some detail. Whilst it accepted certain aspects of their account it also rejected critical aspects of it. 4 It did this, because on those critical aspects, it did not accept their version of events. Before the Federal Magistrates Court, the appellants launched a number of attacks upon the process of reasoning of the Refugee Review Tribunal. It was a necessary consequence of s 474 of the Migration Act 1958 (Cth) that those attacks, in order to be successful, had to characterise the errors said to be manifest in the Refugee Review Tribunal as jurisdictional errors. 5 The grounds which were pursued before the learned federal magistrate were, in some circumstances, capable of being so characterised, and in others, not. In this Court, the grounds of appeal were more circumscribed. I say grounds of appeal, because it is important to emphasise that the relationship between this Court and the Federal Magistrates Court is one of an appeal in the usual sense. Thus, it is no part of this Court's function, in the exercise of its duties in hearing such an appeal, to identify jurisdictional error by the Federal Magistrates Court. 6 The grounds relied upon by the appellants in this Court were as follows: 1. jurisdictional error; 2. breach of procedural fairness; 3. breach of natural justice. 7 There were then appended to those three grounds of appeal the following particulars: I claim the RRT breached section 424A(1)(2) of the Migration Act 1958 (Cth) by failing to provide particulars of information that formed the reason or part of the reason for affirming the delegate's decision. My RRT decision has a number of adverse information, which became the reason for my application refusal. The reason were not put to me in writing before the RRT has made a decision. 8 The Minister submitted, and I accept, that one aspect of that complaint is that the Tribunal impermissibly took into account certain information referred to as "country information". The particular part of the Tribunal's reasons that was alleged to exhibit this difficulty was in the following terms: The Tribunal has carefully considered the applicants' Hindu faith and support of the BJP by voting for the Party at election time, and the Tribunal appreciates that an applicant need not prove past harm in order to establish future harm. The Tribunal has considered the generic reports provided by the applicants and their general claims about inter-religious tensions; the Tribunal appreciates that aalthough there have been religious tensions in India, the US Department of State Report on India (International Religious Freedom Report 2006, Released by the Bureau of Democracy, Human Rights, and Labor) notes that: