SZNLB v Minister for Immigration and Citizenship

Federal Court of Australia|2009-11-20|Before: Cowdroy J

REASONS FOR JUDGMENT 1 The appellant appeals from the decision of Federal Magistrate Smith delivered on 26 August 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 16 March 2009. The Tribunal's decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship ('the Minister') to refuse to grant a Protection (Class XA) visa to the appellant.

BACKGROUND 2 The appellant is a citizen of India who arrived in Australia on 27 July 2008. On 28 August 2008 the appellant 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 30 October 2008. On 24 November 2008 the appellant applied to the Tribunal for a review of that decision. 3 In an unsigned statutory declaration attached to his protection visa, the appellant claimed that his father was a member of the 'Communist Party of India Maoist Party'. He claimed that he was a member of that party's youth wing, the Radical Youth League ('RYL'). He claimed that in March 2006 his father was arrested and taken away by the Tamil Nadu Q branch state police and had not been seen since. He claimed that he had sent letters to government authorities and to the Indian Prime Minister about his father's disappearance, but had not received any response. He stated that he moved to Bangalore in 2007 to look for work but that he was arrested and taken to Trichey, where he was detained without bail for three months. He claimed that the police told him to stop looking for his father or else he would be gaoled or killed.

THE TRIBUNAL'S DECISION 4 The Tribunal found that the appellant was not a reliable witness, stating that his evidence was undermined by vagueness, inconsistency and apparently ill-researched improvisation. The Tribunal did not accept that the appellant's father was ever arrested in connection with the membership of any political party because the appellant was deeply confused as to which party he had joined. The appellant sometimes claimed that the party was known as the CPI(ML) party, other times the CPI-Maoist party (CPI being short for Communist Party of India). The Tribunal found and put to the appellant that both the abovementioned parties are different and are actually in conflict with each other. Further, the appellant claimed to have joined the CPI-Maoist party in 2001, however, the Tribunal found and put to the appellant that the CPI-Maoist party did not exist before 2004. In both circumstances, the Tribunal found that the appellant was not able to provide reasons for the discrepancies and inaccuracies in his account. 5 The Tribunal rejected all of the appellant's claims flowing from its conclusion that he was not a witness of truth, and that he had fabricated his core claim. The Tribunal was not satisfied that the appellant faced a real chance of Convention-related persecution in India. The Tribunal therefore affirmed the decision of the delegate not to grant the appellant a Protection (Class XA) visa.

FEDERAL MAGISTRATES COURT 6 By Application filed in the Federal Magistrates Court of Australia on 9 April 2009, and by Amended Application filed on 13 July 2009, the appellant sought judicial review of the Tribunal's decision. 7 Before Federal Magistrate Smith the appellant claimed in the Amended Application: 1. The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusions that the applicant was not a witness of truth, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

3.The Tribunal failed to comply with s424 of the Migration Act 1958.

Particulars i. The Tribunal asked question invited the applicant to give information additional to that which the Tribunal had obtained.

(a) The invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act. i. The invitation did not specify the way in which the additional information may be given. ii. The invitation did not specify the period within which the information was to be given.

The Tribunal member had failed to honour his undertaking. The requirement to put information to an applicant is contained in S424A which relevantly states:

424A applicant must be given certain information 1. Subject to subsection (3), the Tribunal must: a) Give to the applicant, in a way that the Tribunal consider appropriate in the circumstances, particulars of any information that the Tribunal consider would be the reason, or part of the reason, for affirming the decision that is under review; and b) Ensure, as for as is reasonably practicable, that the applicant understand why it is relevant to the review and c) Invite the applicant to comment on it.

It is my case that the Tribunal ignore its undertaking to give me an opportunity to make written submission about the inconsistencies in my evidence and lacked credibility; therefore the Tribunal had erred by denying me procedural fairness in respect of this issues. If I would provide a submission prior to RRT decision, I believe that I would have a different decision.

Therefore the I submit that the Tribunal failed to analyse properly the "future harm" that I may face if I have to go back to India.

Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the 'real chance' test, before dismissing my claim.

8 In respect of the first ground, the Federal Magistrate found that the ground was 'nonsense' as the Tribunal's conclusions were obviously open to it, given the discrepancies identified by the Tribunal in the appellant's account and further that the appellant was given an opportunity to be heard in respect of the matters of concern to the Tribunal. 9 In respect of the second ground (numbered as the third ground in the Amended Application), the Federal Magistrate found that s 424(2) of the Migration Act 1958 (Cth) ('the Act') was not engaged. His Honour noted to this effect the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109, and the decision of the High Court of Australia in Minister for Immigration and Citizenship v SZKTI and Another (2009) 258 ALR 434. 10 In respect of the third ground (numbered as the fourth ground in the Amended Application), the Federal Magistrate stated that s 424A of the Act does not give any rights to an applicant to expect a written invitation to comment on the thought processes of the Tribunal nor to 'comment on conflict matters' citing SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at [18]. 11 The Federal Magistrate also found that there was no substance to the appellant's claim that the Tribunal failed to properly analyse the chance of 'future harm', or that it failed to properly apply the 'real chance' test. 12 Having found no jurisdictional error in the Tribunal decision, Federal Magistrate Smith dismissed the Amended Application.

APPEAL TO THIS COURT 13 On 15 September 2009 the appellant filed in this Court a Notice of Appeal from the decision of Federal Magistrate Smith. In the Notice of Appeal the appellant raised the following single ground of appeal: 2.[sic] The Federal Magistrates Court failed to consider the ground of my appeal such as error of law made by the Tribunal failed to comply with s424 of the Migration Act 1958. a) The Invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act: i) The invitation did not specify the way in which the additional information may be given. ii) The invitation did not specify the period within which the information was to be given.

14 It is to be noted that this ground of appeal is identical to the second (marked as third) ground of appeal before the Federal Magistrate in the Amended Application, apart from minor changes in format and the inclusion of the words acknowledging that the present appeal is from the Federal Magistrate, rather than the Tribunal. It is also in virtually identical terms and format to a ground of appeal in another matter before this Court, namely NSD 1009/2009 SZNLT v Minister for Immigration and Citizenship. Those proceedings also deal with an Indian appellant. The assumption can safely be made that they were prepared by the same source, and apparently with equal disinterest as to whether the ground has any merit. 15 At the hearing of the appeal on 17 November 2009, the appellant made no further oral submissions in support of his Notice of Appeal. When asked whether he could explain his ground of appeal to the Court, he explained that he didn't know. The Court asked him who had prepared his Notice of Appeal for him. He said that he had been introduced through a friend to a person named 'James' who he met in a park at Central (presumably Central Station, Sydney).

FINDINGS 16 The only ground of appeal before this Court is relevantly identical to the second ground of appeal (numbered three in the Application) before the Federal Magistrate. No argument has been advanced in this Court in favour of such ground apart from the ground itself in the Notice of Appeal. Consequently, unless the Court can discern error with the Federal Magistrate's treatment of that ground of appeal, this appeal must fail. 17 The Court has read the decision of the Federal Magistrate, and in particular its treatment of the ground of appeal in question. The Federal Magistrate pointed out that the ground of appeal was founded on a misunderstanding of the relevant law. The Federal Magistrate found that the effect of the decision of SZNAV at [23] was that s 424(2) of the Act was never triggered in respect of the Tribunal sending the appellant an 'acknowledgment letter' dated 25 November 2008, because no 'additional information' was sought from the appellant by that letter. Consequently, ss 424(3) and 424B of the Act never became relevant. 18 Further, the Federal Magistrate found that the appellant's ground of appeal regarding the effect of s 424 did not accord with recent authority regarding the Tribunal's power to gain information, especially the decision of SZKTI which, according to SZNAV at [21], demonstrated that 'the difference between ss 424(1) and 424(2) is to be found in the consequences of non-compliance, and not the making of fine distinctions between the Tribunal getting relevant information and inviting a person to give additional information'. 19 The Court can find no error with the decision of the Federal Magistrate, and thus the appeal must be dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 20 November 2009 Counsel for the Appellant: The appellant appeared in person

Solicitor for the First Respondent: DLA Phillips Fox

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