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SZHZX v Minister for Immigration & Multicultural Affairs [2006] FCA 1469 (9 November 2006)

Last Updated: 10 November 2006

FEDERAL COURT OF AUSTRALIA

SZHZX v Minister for Immigration & Multicultural Affairs [2006] FCA 1469

Migration Act 1958 (Cth) s 424A

Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 79 ALJR 1009
SZCIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 62
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214
SZHZX v Minister for Immigration & Multicultural Affairs [2006] FMCA 1065

SZHZX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL
NSD 1495 OF 2006

NICHOLSON J
9 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1495 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHZX Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	NICHOLSON J
DATE OF ORDER:	9 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal to be agreed or, failing agreement, to be taxed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1495 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHZX Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	NICHOLSON J
DATE:	9 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a decision of a Federal Magistrate (Scarlett FM) made on 21 July 2006: SZHZX v Minister for Immigration & Multicultural Affairs [2006] FMCA 1065. In that decision, his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 17 November 2005 and handed down on 8 December 2005. In that decision the Tribunal affirmed the decision of a delegate of the first respondent not to grant a protection (class XA) visa to the appellant pursuant to the Migration Act 1958 (Cth) (the Act).
2 The appellant is a citizen of India who arrived in Australia on 11 June 2005. The delegate refused his application on 11 August 2005. He applied on 6 September 2005 for review by the Tribunal.
3 Before the Tribunal the appellant claimed to have a well-founded fear of persecution for his political opinion. He claimed to have been a member of Shiv Sena and that he received threatening telephone calls. He submitted to the Tribunal a card purporting to have been issued by Shiv Sena and which had his photograph on it.
4 On 17 November 2005 the Tribunal made a decision affirming the decision of the delegate. It did not accept the appellant was a member of Shiv Sena. It found the appellant’s Shiv Sena membership card was not genuine as the appellant had not been truthful about the card’s history, noting that the appellant would have brought the card with him instead of asking for it to be sent. Furthermore, it found the appellant lacked familiarity with Shiv Sena and did not appear to share its views.
5 The Tribunal also considered that even if the appellant had some link with Shiv Sena, it did not accept the appellant was threatened in 2004. It gave five reasons for this finding. Firstly, the appellant did not move despite receiving threatening telephone calls to his home address. Secondly, the appellant claims that his home city was ‘safe’ for him as everyone living there supported Shiv Sena. Thirdly, there was no independent evidence indicating Congress Party members were threatening people associated with Shiv Sena. Fourthly, the evidence regarding the means through which the appellant received threats was internally inconsistent. Finally, the appellant’s limited knowledge of Shiv Sena was not consistent with his claims of being a leading figure who might have attracted adverse attention.
6 The Tribunal was satisfied that, as the appellant stated he did not want to be involved in any political activities in the future, that the chance of politically-motivated harm in the future was remote. The Tribunal therefore found the appellant did not have a well-founded fear and affirmed the decision not to grant a protection visa.
7 In an amended application filed on 18 April 2006 in the Federal Magistrates Court, the appellant claimed there were erroneous findings of fact drawn from adverse inferences as to the appellant’s credibility and that the Tribunal’s findings were unreasonable, illogical, and not supported by logical grounds. Particulars provided in support of these grounds asserted the Tribunal made erroneous findings regarding the authenticity of the appellant’s membership card, the appellant being safe in his home city, and the appellant ‘occasionally’ working for Shiv Sena.
8 In dismissing the application for review, the Federal Magistrate stated at [15]:

‘The findings of fact are exclusively the province of the Tribunal, so long as there is evidence upon which those findings of fact can be made. In my view, this is very much a case where the Tribunal based its decision and made its factual findings upon the evidence that was presented to it by the Applicant and his witness.’

9 The Federal Magistrate turned to the grounds in the application for judicial review and found there was no evidence of unreasonableness, of illogical findings or that any specific examples were provided. His Honour found no jurisdictional error and therefore dismissed the application.
10 In a notice of appeal filed on 8 August 2006 in this Court, the appellant raised two grounds of appeal, namely that the Federal Magistrate did not find a failure to follow s 424A of the Act or a denial of natural justice by the Tribunal. Neither of these were issues before his Honour so that, on the face of the grounds, the appeal cannot succeed.
11 In written and oral submissions at the hearing of the appeal the appellant submitted the Tribunal had an obligation to follow SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 (SZEEU) and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 79 ALJR 1009. He identified passages in the reasoning of the Tribunal where he submitted the Tribunal had decided adversely to him but without notice under s 424A. The issues he identified were expressed as follows by the Tribunal:

• (1): ‘I put to the applicant that the witness had given different information about him to the evidence that he himself had given me.’
• (2):‘I asked him why he could not relocate within India...’
• (3):‘I am not satisfied that he is the holder of a genuine membership card from Shiv Sena. I do not accept that the card he submitted at the hearing was issued by Shiv Sena for several reasons....In my view, if he had had the card ...before he left India...he would surely have brought it with him.’
• (4):‘I do not accept that he was threatened in 2004. Firstly, he did not move out of his home address...’
• (5):‘the Tribunal has no evidence from any independent source that members of the Congress Party are threatening or harming people associated with Shiv Sena.’
• (6): ‘his evidence about the means through which he received threats was internally inconsistent.’

12 Section 424A relevantly reads:

‘

(1) Subject to subsection (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.

(3) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.’

13 Section 422B reads:

‘

(1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.’

14 This is a decision to which s 422B applied. It is now well settled that there is no obligation to provide common law natural justice to persons seeking review of a decision of the Minister’s delegate. All that is required is that the Tribunal observe the statutory expression of natural justice found in s 424A: see SZCIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 62 per Heerey, Conti and Jacobson JJ; Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214.
15 The critical issue for the appellant is whether s 424A was engaged in this case. It will not have been engaged if the exception to its application appearing in s 424A(3)(b) is applicable. The scope of that paragraph has been the subject of consideration in SZEEU. At 259, at [205]-[206] Allsop J said:

‘Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: The Complete Oxford English Dictionary (2^nd ed, 1991). In this context, the word has been taken as referring to knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3], approved in VAF at [24] or knowledge which has come to, or has been gained by, the Tribunal: Paul at [95].

Information does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54], Paul at [95] and VAF at [24]. In this respect, it is relevant to recall the root of the word "information": that of which one has been told or apprised, or informed. The distinction can become fine: Paul at [95]. It is a distinction, nevertheless, to be maintained. Also, the fact that appraisal, thought process and determination are not information does not mean they are not relevant to the operation of s 424A. The thought processes of the Tribunal may reveal the relevance of information for s 424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s 424A(1)(a), (b) or (c).’

I propose to proceed on an understanding of that paragraph in those terms.

16 I turn to each of the identified portions of the reasons of the Tribunal which arise from the appellant’s submissions. These were each addressed by the appellant and the respondent on the hearing of the appeal.
17 Item (1) is a reference to the evidence of Mr Patel. The content of the evidence is recorded in the reasons of the Tribunal in the following terms:

‘Mr Janak Kumar Patel gave oral evidence. He confirmed that the two were from the same town, that he himself had been nine years in Australia and that he had last been in Kadi in 2003. He had not seen the applicant personally during that visit. He had also visited India in the middle of 2001 for six months or so. He said he did not know the applicant well. He said that the applicant’s father had been rich at the time when the witness had left India in 1993. The witness had heard during the 2001 visit that the applicant was a college student leader. He also heard that the applicant’s father was having business problems because his business partner had become bankrupt and had stolen money from the family business. During his 2003 visit to India he had heard that the applicant’s family situation had become very poor financially. After returning to Australia, the witness had heard from his own cousin in Kadi, by telephone, that the applicant wanted to leave India because he thought he was not safe. The witness’s cousin told the witness that the police were troubling the applicant. The witness agreed that this was gossip or rumour and he did not know anything much about it. After the applicant arrived in Australia he had contacted the witness. The witness then left the room.’

Of that evidence the Tribunal said:

‘I put to the applicant that the witness had given different information about him to the evidence that he himself and given me. The applicant said that it was true that the police had come to his home but that was only because of his father’s business problems. I told him that his witness seemed to know very little about him and he said that this witness’s cousin had told his witness that he had heard it was not safe for Mr Patel in India.’

18 The respondent submits that the evidence of this witness was not information which was relied upon by the Tribunal nor was it the reason or part of the reason for affirming the decision under review. It is true that it is not referred to in the findings and reasons of the Tribunal. However, regard should be had to the entire reasons. Having done that and, in particular, having had regard to the reasoning of the Tribunal in respect to the evidence, I consider that the only proper inference open is that this evidence did not form part of the reasoning of the Tribunal. Consequently s 424A could not have had any application with respect to it.
19 Item (2) addressed the issue of relocation. It is apparent from the reasoning of the Tribunal that this did not form part of the reasons or part of the reasons of the Tribunal, it considered that the application failed for other reasons. Again, s 424A could not have had any application.
20 Item (3) concerns the evidence of the appellant’s membership card from Shiv Sena. It is patent that the foundation of the reasoning of the Tribunal came from the evidence of the applicant. It was the inconsistency in the appellant’s evidence on the issue upon which the Tribunal relied. Consequently the exception in s 424A(3)(b) was applicable to prevent the application of s 424A to that information.
21 Item (4) likewise arose from the applicant’s own evidence, so that the exception in s 424A(3)(b) was applicable to again exclude the application of s 424A.
22 Item (5) raises the question whether s 424A can have any application to an absence of evidence. Understanding the reference in the section to ‘information’ in the manner described by Allsop J in SZEEU, as set out above, I do not consider it can. An absence of evidence is not ‘information’. The section is plainly only directed to ‘information’.
23 Item (6) concerning threats arose from inconsistencies in the oral evidence given by the appellant. It is therefore information given by the appellant to the hearing which invokes the application of the exception to s 424A in s 424A(3)(b).
24 The result is that there was no foundation upon which s 424A could have been engaged in this case. The appellant cannot therefore succeed upon the grounds raised in his written submissions.
25 In oral submissions the appellant addressed issues going to the merits of the Tribunal’s findings of fact. As explained to the appellant on the hearing of the appeal, it is not within the province of this Court on appeal to remake the findings of the Tribunal whether as to credibility or otherwise.
26 The appellant also expressed the view that the Tribunal should have told him that his evidence was insufficient and given him the opportunity to bring more evidence. However, the law is that it is for an applicant to make out his or her case: Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22; (1997) 191 CLR 559 at 596 per Kirby J.
27 The result is that the appellant has not made out a case at law for his appeal to succeed. Accordingly the appeal must be dismissed with costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate:

Dated: 9 November 2006

The Appellant appeared in person:

Counsel for the Respondents:	L Clegg

Solicitor for the Respondents:	Phillips Fox

Date of Hearing:	8 November 2006

Date of Judgment:	9 November 2006

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1	This is an appeal from a decision of a Federal Magistrate (Scarlett FM) made on 21 July 2006: SZHZX v Minister for Immigration & Multicultural Affairs [2006] FMCA 1065. In that decision, his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 17 November 2005 and handed down on 8 December 2005. In that decision the Tribunal affirmed the decision of a delegate of the first respondent not to grant a protection (class XA) visa to the appellant pursuant to the Migration Act 1958 (Cth) (the Act).
2	The appellant is a citizen of India who arrived in Australia on 11 June 2005. The delegate refused his application on 11 August 2005. He applied on 6 September 2005 for review by the Tribunal.
3	Before the Tribunal the appellant claimed to have a well-founded fear of persecution for his political opinion. He claimed to have been a member of Shiv Sena and that he received threatening telephone calls. He submitted to the Tribunal a card purporting to have been issued by Shiv Sena and which had his photograph on it.
4	On 17 November 2005 the Tribunal made a decision affirming the decision of the delegate. It did not accept the appellant was a member of Shiv Sena. It found the appellant’s Shiv Sena membership card was not genuine as the appellant had not been truthful about the card’s history, noting that the appellant would have brought the card with him instead of asking for it to be sent. Furthermore, it found the appellant lacked familiarity with Shiv Sena and did not appear to share its views.
5	The Tribunal also considered that even if the appellant had some link with Shiv Sena, it did not accept the appellant was threatened in 2004. It gave five reasons for this finding. Firstly, the appellant did not move despite receiving threatening telephone calls to his home address. Secondly, the appellant claims that his home city was ‘safe’ for him as everyone living there supported Shiv Sena. Thirdly, there was no independent evidence indicating Congress Party members were threatening people associated with Shiv Sena. Fourthly, the evidence regarding the means through which the appellant received threats was internally inconsistent. Finally, the appellant’s limited knowledge of Shiv Sena was not consistent with his claims of being a leading figure who might have attracted adverse attention.
6	The Tribunal was satisfied that, as the appellant stated he did not want to be involved in any political activities in the future, that the chance of politically-motivated harm in the future was remote. The Tribunal therefore found the appellant did not have a well-founded fear and affirmed the decision not to grant a protection visa.
7	In an amended application filed on 18 April 2006 in the Federal Magistrates Court, the appellant claimed there were erroneous findings of fact drawn from adverse inferences as to the appellant’s credibility and that the Tribunal’s findings were unreasonable, illogical, and not supported by logical grounds. Particulars provided in support of these grounds asserted the Tribunal made erroneous findings regarding the authenticity of the appellant’s membership card, the appellant being safe in his home city, and the appellant ‘occasionally’ working for Shiv Sena.
8	In dismissing the application for review, the Federal Magistrate stated at [15]:

9	The Federal Magistrate turned to the grounds in the application for judicial review and found there was no evidence of unreasonableness, of illogical findings or that any specific examples were provided. His Honour found no jurisdictional error and therefore dismissed the application.
10	In a notice of appeal filed on 8 August 2006 in this Court, the appellant raised two grounds of appeal, namely that the Federal Magistrate did not find a failure to follow s 424A of the Act or a denial of natural justice by the Tribunal. Neither of these were issues before his Honour so that, on the face of the grounds, the appeal cannot succeed.
11	In written and oral submissions at the hearing of the appeal the appellant submitted the Tribunal had an obligation to follow SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 (SZEEU) and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 79 ALJR 1009. He identified passages in the reasoning of the Tribunal where he submitted the Tribunal had decided adversely to him but without notice under s 424A. The issues he identified were expressed as follows by the Tribunal:

16	I turn to each of the identified portions of the reasons of the Tribunal which arise from the appellant’s submissions. These were each addressed by the appellant and the respondent on the hearing of the appeal.
17	Item (1) is a reference to the evidence of Mr Patel. The content of the evidence is recorded in the reasons of the Tribunal in the following terms:

18	The respondent submits that the evidence of this witness was not information which was relied upon by the Tribunal nor was it the reason or part of the reason for affirming the decision under review. It is true that it is not referred to in the findings and reasons of the Tribunal. However, regard should be had to the entire reasons. Having done that and, in particular, having had regard to the reasoning of the Tribunal in respect to the evidence, I consider that the only proper inference open is that this evidence did not form part of the reasoning of the Tribunal. Consequently s 424A could not have had any application with respect to it.
19	Item (2) addressed the issue of relocation. It is apparent from the reasoning of the Tribunal that this did not form part of the reasons or part of the reasons of the Tribunal, it considered that the application failed for other reasons. Again, s 424A could not have had any application.
20	Item (3) concerns the evidence of the appellant’s membership card from Shiv Sena. It is patent that the foundation of the reasoning of the Tribunal came from the evidence of the applicant. It was the inconsistency in the appellant’s evidence on the issue upon which the Tribunal relied. Consequently the exception in s 424A(3)(b) was applicable to prevent the application of s 424A to that information.
21	Item (4) likewise arose from the applicant’s own evidence, so that the exception in s 424A(3)(b) was applicable to again exclude the application of s 424A.
22	Item (5) raises the question whether s 424A can have any application to an absence of evidence. Understanding the reference in the section to ‘information’ in the manner described by Allsop J in SZEEU, as set out above, I do not consider it can. An absence of evidence is not ‘information’. The section is plainly only directed to ‘information’.
23	Item (6) concerning threats arose from inconsistencies in the oral evidence given by the appellant. It is therefore information given by the appellant to the hearing which invokes the application of the exception to s 424A in s 424A(3)(b).
24	The result is that there was no foundation upon which s 424A could have been engaged in this case. The appellant cannot therefore succeed upon the grounds raised in his written submissions.
25	In oral submissions the appellant addressed issues going to the merits of the Tribunal’s findings of fact. As explained to the appellant on the hearing of the appeal, it is not within the province of this Court on appeal to remake the findings of the Tribunal whether as to credibility or otherwise.
26	The appellant also expressed the view that the Tribunal should have told him that his evidence was insufficient and given him the opportunity to bring more evidence. However, the law is that it is for an applicant to make out his or her case: Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22; (1997) 191 CLR 559 at 596 per Kirby J.
27	The result is that the appellant has not made out a case at law for his appeal to succeed. Accordingly the appeal must be dismissed with costs.