SZNPM v Minister for Immigration and Citizenship

Federal Court of Australia|2010-03-04|Before: Cowdroy J

REASONS FOR JUDGMENT 1 The appellants appeal from the decision of Federal Magistrate Smith delivered on 9 October 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 21 April 2009. The Tribunal's decision affirmed the decisions of a delegate of the Minister for Immigration and Citizenship ('the Minister') to refuse to grant Protection (Class XA) visas to the appellants.

BACKGROUND 2 The appellants, who are husband and wife, are citizens of India who arrived in Australia on 13 September 2008. On 16 October 2008 the appellants lodged applications for protection visas with the Department of Immigration and Citizenship. A delegate of the first respondent refused the applications on 13 January 2009. On 7 February 2009 the appellants applied to the Tribunal for a review of those decisions. 3 In his application for a protection visa, the appellant husband ('the appellant') claimed to fear persecution due to his political opinion. The appellant claimed that at one time he had been an active supporter of the Bharatiya Janata Party ('BJP'). The appellant claimed that he was arrested on 23 February 1993 on the way to a rally in Delhi and he was released after one week without charge. He claimed that he worked as a BJP member until 2005 and thereafter he tried to distance himself from the work of the BJP as he had grown disillusioned with their leadership. The appellant claimed that he was told to campaign for the BJP leader at a recent state election but he refused to do so. He claimed that as the BJP candidate regarded his refusal as an 'assault on the party', he was asked to attend the party headquarters to explain his position. The appellant claimed that, as he did not attend as requested, the following day BJP supporters came to his house and beat him. He also claimed that after a bomb blast next to his area he was questioned by police and accused of being involved with Muslim terrorists. The appellant stated that he was released without charge and warned to stay away from conflict with BJP leaders. 4 The appellant wife relied on the claims of her husband as part of the family unit.

THE TRIBUNAL'S DECISION 5 The Tribunal did not accept that the appellant was a witness of truth, finding that he had created his claims in order to obtain the visa sought. The Tribunal noted that he was unable to recall where and when the claimed bomb blast had occurred. It also found that he was not able to explain his involvement in any political activities in any detail and found that his explanation of his involvement with the BJP was implausible. The Tribunal also found that his evidence at the Tribunal hearing was inconsistent in relation to the claimed attacks on him by the BJP. It found that his claim of being continually threatened by the BJP from 2006 until he left to come to Australia in 2008 was a late invention made in order to enhance his claims. As the Tribunal was satisfied that the appellant was not a witness of truth, it rejected his claim to have been a member of the BJP and all of his claims regarding his fear of harm. 6 The Tribunal was satisfied that the Indian state had put in place reasonable measures to protect the lives and safety of its citizens. It was further satisfied that the Gujarat police take action in relation to attacks on their citizens. The Tribunal found that there was no independent evidence before it to support his claim that he would not obtain state protection in India. 7 The Tribunal was therefore not satisfied on the evidence before it that the appellants were persons to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together, the Refugees Convention, or 'the Convention'). The Tribunal therefore affirmed the decision of the delegate not to grant the appellants protection visas.

FEDERAL MAGISTRATES COURT 8 By application filed in the Federal Magistrates Court of Australia on 18 May 2009 the appellants sought judicial review of the Tribunal's decision. 9 Before Smith FM the appellants claimed that: 1. The Tribunal did not give the appellant the independent information about India before the hearing and as such was in breach of s 424A of the Migration Act 1958. 2. The Tribunal denied the appellant procedural fairness by reaching adverse conclusions that he was not a witness of truth, being a conclusion not obviously open on the known material, without giving the appellant an opportunity to be heard in respect of that matter. 3. The appellant satisfied the four key elements of the Convention definition of Refugee. 4. The Tribunal failed to investigate the appellant's claim, particularly the grounds of persecution in India. The Tribunal decision was affected by actual bias. 10 In respect of ground 1, the Federal Magistrate stated that country information is excluded from the obligation in s 424A(1) by reason of s 424A(3)(a) of the Migration Act 1958 (Cth) ('the Act'). 11 In respect of ground 2, the Federal Magistrate found that this ground was misconceived. His Honour stated that the appellant was plainly put on notice that the Tribunal would be considering the credibility of all his claims because the delegate had declined to accept the credibility of his claims in their entirety and the Tribunal had canvassed its concerns about his credibility with him during the hearing. His Honour did not accept that the appellant husband was denied any opportunity to be heard in relation to the issues upon which the Tribunal decided the case. 12 In respect of ground 3, the Federal Magistrate noted that merits review was not available to the appellants. His Honour stated that there was no element in the definition of refugee which the Tribunal was obliged to address further and failed to do so. 13 The Federal Magistrate found that the appellants' fourth ground had no relevance to the present case. His Honour found that the Tribunal did investigate the appellants' claimed grounds by considering the appellant husband's evidence and disbelieving it, and noted that the Tribunal was not invited by the appellant to conduct any additional investigations and was not obliged to do so. His Honour also found no evidence to support an allegation of bias. 14 Having found no jurisdictional error in the Tribunal decision, Smith FM dismissed the application.

APPEAL TO THIS COURT 15 On 27 October 2009 the appellants filed in this Court a Notice of Appeal from the decision of Smith FM. The appellants raise the following ground of appeal: 2. The Federal Magistrate 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) At 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.

It should be noted that there is no ground numbered '1'.

SUBMISSIONS OF THE APPELLANT 16 On the date of the hearing the appellant was allegedly suffering from the effects of a workplace injury to his lower leg and as such could not travel from Mildura to Sydney for the hearing. The hearing proceeded as arranged with the appellant appearing via telephone, assisted by an interpreter who was present in the courtroom throughout the proceedings. The appellant made no objection to this arrangement and upon the Court's inquiry the appellant told the Court (with the aid of an interpreter) that he consented to the hearing being so conducted. Since the grounds of appeal raised issues of law only, the Court considered that it was appropriate for the hearing to be conducted in this manner. The Court notes that the hearing had already been delayed by one week on account of a lower back injury to the appellant. The appellant informed the Court that he had been assisted by a migration agent to draft his appeal and that he did not understand the nature of the grounds of his appeal. The appellant declined to make any submissions at the hearing.

FINDINGS 17 The Court now refers to the appellants' Notice of Appeal. At the outset the Court observes that the sole ground (although numbered 2) in the Notice of Appeal appears to have been taken from a proforma document often used in appeals in this Court since the decision of Smith FM in SZNAV and Others v Minister for Immigration and Another (2009) 110 ALD 604. In that decision his Honour found that the 'acknowledgement letter' sent by the Tribunal was an invitation for additional information pursuant to s 424(2) of the Act. Such decision however was reversed by the Full Court on appeal: see Minister for Immigration and Citizenship v SZNAV and Others [2009] FCAFC 109. 18 Further, the Court observes that this ground was not raised before his Honour in the Federal Magistrates Court. Accordingly, leave is required to rely upon such ground: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [23]-[26]. 19 Given the effect of the Full Court's decision in SZNAV, there is plainly no merit in the appellant's sole ground of appeal. Based on that authority, the acknowledgement letter sent by the Tribunal does not constitute an invitation for additional information which would enliven s 424(2) of the Act. 20 In view of the above, the appeal could not succeed. For this reason the Court refuses leave to rely upon the proposed ground of appeal and the appeal must be dismissed with costs. Since the claims of the second appellant are dependant upon the result of the first appellant's claim, her claim must also fail. 21 Although not applying to the specific facts of this case, the Court notes that subsequent amendments of the Act pursuant to the Migration Legislation Amendment Act (No. 1) 2009 have removed any reference to 'additional information'. As such, the distinction between 'information' and 'additional information' relied upon by the appellants is no longer a part of Australian law. 22 The first respondent seeks an order that its costs be paid in the amount of $2,031.60 pursuant to O 62 r 40C(4) of the Federal Court Rules and Item 43H of Schedule 2 to the Federal Court Rules. The application is supported by the affidavit of Angela Margaret Nanson affirmed 8 February 2010. As the affidavit discloses that costs have been incurred exceeding the amount of the claim and as the costs claimed appear to be reasonable, the Court will make an order that the appellants pay the first respondent's costs in the amount claimed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

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