SZNMS v Minister for Immigration and Citizenship

Federal Court of Australia|2009-11-05|Before: Barker J

appeal 1 This is an appeal from a judgment of a Federal Magistrate delivered on 24 August 2009. The Federal Magistrate dismissed the appellant's application for review of a decision of the Refugee Review Tribunal (Tribunal) dated 20 March 2009. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) to refuse the appellant a protection visa.

prior applications 2 The appellant is a citizen of India and arrived in Australia on 12 August 2008. 3 On 19 September 2008, the appellant applied for a protection visa. On 12 December 2008, the appellant's application was refused by the delegate of the Minister. 4 On 12 January 2009, the appellant applied to the Tribunal for review of the delegate's decision. By letter dated 12 February 2009, the Tribunal invited the appellant to give evidence and present arguments before it at a hearing on 19 March 2009. The appellant appeared at the hearing and gave evidence on that day. 5 On 20 March 2009, the Tribunal affirmed the delegate's decision to refuse the appellant a protection visa.

Tribunal's findings 8 The Tribunal's reasoning is found at paragraphs [29] to [36] of the decision record. 9 The Tribunal accepted that the appellant feared harm from the brother of one of his employees, and that this person was seeking to kill or harm the appellant ([31]). However, in view of the available material, the Tribunal found that whilst there was a real risk of harm to the appellant if he lived in the Pilibhit District of India, the appellant was able to safely relocate to another part of India. The Tribunal considered it was reasonable for the appellant to relocate because: · the appellant's difficulties were confined to the Indian District of Pilibhit which is 20 kms from the border of Nepal. By relocating, the appellant could avoid the difficulties he experienced in Pilibhit ([32]); and · although the appellant claimed it was not reasonable for him to relocate within India because his farm and family are in Pilibhit, the Tribunal concluded that the appellant had the "personal circumstances, skills, knowledge, and resources"([33]) to relocate successfully within India. 10 The Tribunal was also satisfied that reasonable state protection was available to the appellant ([34]).

Decision of the Federal Magistrate 11 On 21 April 2009, the appellant filed an application with the Federal Magistrates Court, which complained that the Tribunal: · failed to consider that the "applicant satisfies the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision"; and · failed to "take in to account certain relevant considerations or 'integers' central to the applicant's claim". 12 The Federal Magistrate rejected each of these grounds and dismissed the application.

Appeal to this Court 13 On 2 September 2009, the appellant lodged his notice of appeal. In his appeal to this Court, the appellant does not pursue any grounds related to the grounds of review in his application to the Federal Magistrates Court. Rather, the appellant relies on the following new ground not previously agreed: 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. [Errors in original] 14 The appellant has not filed any written submissions or provided any further particulars to support this ground of appeal. 15 The Minister does not take issue with the raising of this new ground on the appeal but argues it is without substance. 16 The singular ground alleged in the appellant's notice of appeal replicates a ground that was argued, initially successfully, in SZNAV v Minister for Immigration and Citizenship (2009) 229 FLR 461 before a Federal Magistrate. However, on appeal before a specially convened bench of three justices of the Full Federal Court in Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109, the decision of the Federal Magistrate was reversed. The Full Federal Court held in the light of Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434, that an acknowledgment letter was not an invitation to provide the Tribunal with additional information made under s 424(2) of the Migration Act 1958 (Cth) (Act). Further, though strictly obiter, it was also not capable of being considered an invitation under s 424(2) as it was merely "advice to the respondents about how to ensure that their application is complete". The Full Court at [25] was also disposed to see the acknowledgement letter as an administrative act preceding the hearing and not issued by the Tribunal for the purpose of "getting" information. 17 I agree with respect with the findings and observations of the Full Court in this regard. See also my reasons in SZGGD v Minister for Immigration and Citizenship [2009] FCA 1250 at [21] - [38]. 18 For these reasons the ground must fail.

conclusion and orders 19 The appellant has not demonstrated any error in the Federal Magistrate's decision that would lead to the conclusion that the Tribunal erred in a way that affected its jurisdiction. The appeal ought to be dismissed with costs. 20 The Court therefore orders: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs to be taxed if not agreed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

NSD 956 of 2009 Associate: Dated: 5 November 2009 Counsel for the Appellant: Self Represented

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