SZOXB v Minister for Immigration and Citizenship

Federal Court of Australia|2011-08-11|Before: Bromberg J

introduction 1 This is an appeal from a judgment of a Federal Magistrate (SZOXB v Minister for Immigration & Citizenship & Anor [2011] FMCA 328) in which the learned Federal Magistrate dismissed the appellant's application for judicial review. The Federal Magistrate reviewed a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the first respondent ("the Minister") not to grant the appellant a protection visa. 2 The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by the appellant was to determine whether the Tribunal's decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) ("the Migration Act"); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 3 The task of this Court in relation to the appeal brought by the appellant is to determine whether the judgment of the Federal Magistrate is affected by appealable error. 4 For the reasons that follow, I am satisfied that no error has been demonstrated and that the appeal should be dismissed.

grounds of appeal 5 The Notice of Appeal filed in these proceedings contains two grounds of appeal as follows: 1. The Court below erred in that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the meaning of the Migration Act 1958. The Tribunal erred in that: I. It failed to properly consider the circumstances of the appellant's eviction from his sugar cane farm which his family ran for several decades, including the political and racial motives behind the eviction, as claimed by the appellant. II. The Tribunal was wrong in its assumption that the actions of the landlord, his people and the army was a legal dispute and has no Convention nexus. III. The Tribunal failed to inquire whether the appellant was removed from the farm by the landlord and the army when the lease was still current. 2. The Tribunal failed to accord procedural fairness to the appellant in circumstances where the appellant was confused about what he said in his interview with the Department without an interpreter. The Tribunal breached s 424AA of the Migration Act 1958. 6 When the matter was first called on for hearing, the appellant was not in attendance. The matter was stood down for forty minutes and unsuccessful efforts were made to contact the appellant. When the matter was resumed, the appellant had not appeared and I determined to hear the appeal in his absence.

Ground One 7 There are three elements to ground one and none were raised before the Federal Magistrate. 8 As ground one is a new ground, it requires leave in order to be raised by the appellant. The relevant principles regarding the raising of new grounds of appeal with the subject of detailed consideration in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[11] (Flick J). 9 The first element of the appellant's first ground alleges that the Tribunal failed to "properly consider" the circumstances of the appellant's eviction from his sugar cane farm. The only basis for such failure identified is that there was not proper consideration of the appellant's claim that the eviction was motivated by political and racial factors. 10 It is clear from the Tribunal's reasons for decision that the Tribunal considered the non-renewal of the appellant's lease of his sugar cane farm and his subsequent eviction. The Tribunal accepted that the appellant had been evicted and that local people and the army had become involved in the dispute and in his expulsion. The Tribunal also found, including because of the appellant's evidence that his lease had expired, that the involvement of the army was in a policing role for the purpose of enforcing the landlord's right to reclaim the property. The Tribunal determined that the actions of the army and local residents in relation to the appellant's eviction related to a legal dispute between the appellant and his former landlord and were not motivated for any Convention related reason. My reference to the Convention is a reference to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"). On that basis, the Tribunal rejected that there was any future risk of harm to the appellant based on past protests by him over the loss of the land. 11 The Tribunal also considered whether there were any racial motives behind the appellant's eviction from his sugar cane farm. The Tribunal accepted that Indo-Fijians had experienced difficulties in renewing land leases in Fiji. However, the Tribunal was not satisfied that decisions of individual land owners not to renew leases were part of systematic conduct or an officially sanctioned policy which targeted Indo-Fijians because of their race. 12 The Tribunal's findings as to the motives behind the appellant's eviction were factual findings for the Tribunal and were open to the Tribunal on the material which was before it: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 561 (O'Connor, Branson and Marshall JJ). 13 The second element of ground one asserts that the Tribunal was wrong in its conclusion that the actions of the landlord, his people and the army in evicting the appellant had no Convention nexus. Again, the appellant appears to dispute a factual finding made by the Tribunal, in circumstances where it was open for the Tribunal to make the finding that it did. 14 The third element of the first ground of appeal alleges a failure to inquire whether the appellant was removed from the farm when his lease was still current. The Tribunal's reasons for decision do not suggest that the appellant was removed whilst his lease was still current. To the contrary, the appellant gave evidence that his lease had expired at the time he was asked to leave the farm. In those circumstances, there was no basis for any inquiry of the kind that the appellant suggests should have been conducted. In any event, the Tribunal may only have been under a duty to inquire about a critical fact, the existence of which was easily ascertained: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 15 For those reasons, I am of the view that the appellant's first ground of appeal has neither merit nor any prospect of success. It is not expedient in the interests of justice that leave to raise this new ground be granted.

Ground Two 16 There are two complaints raised by ground two. Neither of those matters was raised before the Federal Magistrate. Leave to raise those grounds is required on the same basis as I have indicated earlier. 17 The first element of ground two asserts that, as a matter of procedural fairness, the appellant should have been provided with an interpreter in his interview with the delegate of the Minister ("the delegate"). 18 It is unclear how any failure to provide an interpreter to assist the appellant at the delegate's interview can give rise to any denial of procedural fairness on the part of the Tribunal. In any event, it is apparent from the reasons of the Tribunal that the Tribunal was aware that the appellant had not had the assistance of an interpreter at the delegate's interview. The Tribunal did not draw any adverse conclusions against the appellant as a result of any evidence given at the interview. To the contrary, the Tribunal was willing to give the appellant the benefit of the doubt in relation to some elements of his claims which were made for the first time before the Tribunal. The Tribunal accepted that those matters had not been raised at the interview due to language difficulties. 19 The second element of ground two is that the Tribunal breached s 424AA of the Migration Act. That provision provides as follows: If an applicant is appearing before the Tribunal because of an invitation under section 425: (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) if the Tribunal does so--the Tribunal must: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. 20 The basis upon which the alleged breach occurred has not been given. I can only assume that the asserted breach relates to what was said by the appellant in his interview with the delegate. 21 Section 424AA needs to be read with s 424A. Sections 424AA and 424A work in a complementary manner. If the Tribunal engages the provisions of s 424AA and complies with that section, it need not meet the requirements of s 424A(1). That is the effect of s 424A(2A) as explained by Tracey and Foster JJ in SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at [88] and [104]. 22 A failure to comply with the requirements of s 424AA does not constitute jurisdictional error: SZMCD at [2] (Moore J) and [74]-[75] and [93]-[101] (Tracey and Foster JJ). However, non-compliance by the Tribunal with the requirements of s 424AA will cast the Tribunal back to s 424A. In that event, the Tribunal must then comply with the provisions of s 424A(1): SZMCD at [92] and [103]. A failure to comply with the requirements of s 424A(1) does constitute jurisdictional error: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [78] (McHugh J) [173] (Kirby J) and [208] (Hayne J); SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [13] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). 23 I can see no basis for the appellant's contention that s 424A was not complied with. The Tribunal did not affirm the decision under review by reason of anything said by the appellant at the interview with the delegate. In any event, anything said by the appellant at the interview would not be "information" for the purpose of ss 424A or 424AA: s 424A(3)(b) and s 424AA and SAAP at [116] (Gummow J). 24 For those reasons, I am of the view that the second ground of appeal has no merit nor any prospect of success and that leave to raise it should be refused.

disposition 25 As I have not found any appealable error in the decision of the Federal Magistrate and have declined the appellant leave to raise new grounds not previously raised before the Magistrate, the appeal must be dismissed. The appellant should pay the costs of the first respondent. I will make orders reflecting those conclusions. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Migration Act 1958(Cth)ss 424A, 424AA, 425, 474

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