SZHXK v Minister for Immigration and Citizenship [2007] FCA 759 (15 May 2007)

Last Updated: 18 May 2007

FEDERAL COURT OF AUSTRALIA

SZHXK v Minister for Immigration and Citizenship [2007] FCA 759

SZHXK, SZHXL, SZHXM, SZHXN AND SZHXO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 22 OF 2007

SPENDER ACJ
15 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 22 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHXK First Appellant SZHXL Second Appellant SZHXM Third Appellant SZHXN Fourth Appellant SZHXO Fifth Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	SPENDER ACJ
DATE OF ORDER:	15 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be changed to Minister for Immigration and Citizenship.
2. The appeal be dismissed.
3. The appellants pay the costs of the first respondent, to be taxed if not agreed.

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 22 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHXK First Appellant SZHXL Second Appellant SZHXM Third Appellant SZHXN Fourth Appellant SZHXO Fifth Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	SPENDER ACJ
DATE:	15 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a decision of Turner FM dismissing an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 29 November 2005 affirming a decision of the delegate of the Minister to refuse to grant to all of the appellants Protection Visas.

2 The appellants are husband and wife, their two children, and the mother of one of the parents. They are citizens of India who arrived in Australia on 13 March 2005, and on 7 April 2005 lodged applications for Protection Visas with the Department of Immigration and Multicultural Affairs.

3 Their applications were refused on 9 August 2005 by a delegate of the Minister. As I indicated, the application to the Tribunal was dismissed on 29 November 2005. On 20 December 2005 the applicants applied to the Federal Magistrates Court for review of the Tribunal’s decision. The Federal Magistrates Court dismissed that application on 20 December 2006. On 5 January this year the applicants appealed to the Federal Court.

4 The husband, whom I will call the appellant, claimed to fear persecution in India because of his political opinion. He said that he joined the Shiv-Sena political party and received threats from it after leaving it in 2003. The Tribunal did not accept that any such threats had occurred, indicating that there was no convincing reason on the appellant’s evidence why such threats would occur and the claim was contrary to independent country information that several prominent persons had recently left the party without any serious consequences to them.

5 In relation to that claim, the position is that those findings were findings of fact and were open to the Tribunal. No basis for review can exist in relation to those findings which are directed at the merits of the application. The point of the appeal, however, relates to the treatment by the Tribunal of a letter which was before the Tribunal.

6 That letter, which was unsigned, asserted that the migration of the five applicants was illegal. It alleged that they had acquired visas as tourists for a period of one month, after which they would "put up" a case against the Australian Government to allow them to stay for a further period of time.

7 The letter also alleges that they had applied for an Australian visa on the basis of high assets and good financial background. The term "high assets and good financial background" is highlighted and underlined in the "dob-in" letter. This letter continues:

Kindly look into the matter as soon as possible. This letter is not a part of any rumour or revenge but cheaters and frauds are needed to be punished.

8 The claim by the appellant essentially is first, the Tribunal’s decision was not fair. That is a challenge to the merits of the Tribunal’s findings and is not open to him. Secondly, however, the appellant claims that the applicant did not get an opportunity to comment on the adverse information that the applicant left the party two years before and other prominent figures have left the party recently without suffering.

9 There is no obligation on the Tribunal to indicate in advance its reasoning process for rejecting the claim by the applicant.

10 The reasons for a conclusion, which in this case was to reject his claims of threats, is not "information" within s 424A of the Migration Act 1958 (Cth) (the Act). There is no obligation to give reasons for the reasons that the Tribunal reaches a conclusion or to give to the appellant an opportunity to engage the reasoning process of the decision maker.

11 There was no obligation to give to the applicant an opportunity to comment on the information that the applicant had left the party two years before and that other prominent figures had left the party recently without suffering, being reasons for the Tribunal reaching its conclusion that the applicant was not subjected to threats by virtue of his leaving the party.

12 The final matter concerns the treatment of the "dob-in" letter. The complaint by the appellant is that the Tribunal, when it asked the applicant whether his family was "so wealthy", indicated that the Tribunal was using the contents of the "dob-in" letter, and there was therefore an obligation under s 424A of the Act in respect of that letter.

13 There are two answers to this complaint. First, the reasons of the Tribunal say:

The applicant referred to his donations to the party. I asked whether his family was so wealthy that the loss of its support would inconvenience Shiv Sena significantly. He said it would not.

14 And then:

At the end of the hearing I informed the applicant that there was a letter on the Department’s file from a person alleging that the applicant would make a fraudulent claim for protection in Australia after he and his family arrived on visitor visa. I said the letter was typed and not signed. Its claims were general and lacked any detail which could be useful in making a decision on his application. Were that not so, I would put the information to him for comment. The letter was not referred to in the delegate’s decision and appeared to have played no part in it. The letter would not play any part in my decision either.

15 The Tribunal, as those reasons indicate, made the substance of the letter known to the appellant at the hearing. As a consequence, there was no breach of procedural fairness. In VEAL of 2002 v Minister for Immigration and Multicultural Affairs [2005] HCA 72; (2005) 225 CLR 88 the Court indicated in paragraph 27 that:

It follows that to conduct the review with procedural fairness the appellant had at least to know the substance of what was said against him in the letter.

16 This is what the Tribunal did.

17 As to the criticism by the appellant that the Tribunal in fact took into account the information concerning the wealth of the family contained in the letter, the answer is the Tribunal made clear that the letter played no part in its decision. The reference in its reasons to the wealth of the appellant is explained by its querying as to the extent of the donations made to the party, and whether the withdrawal of that financial support would be of significance to it.

18 In my judgment, the statement by the Tribunal that the letter played no part in its decision is not shown to be wrong. The consequence is that the information in the letter was not in fact "part of the reason" for its decision, so as to engage s 424A(1). The learned Federal Magistrate was entitled to conclude that this ground should be rejected. There was no breach of s 424A, or a denial of procedural fairness generally, in the way the Tribunal dealt with the "dob-in" letter.

19 For these reasons no error has been shown in the judgment of Turner FM. The consequence is the appeal should be dismissed with costs.

20 The order of the Court is that the appeals be dismissed with 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 Acting Chief Justice Spender

Associate:

Dated: 17 May 2007

The First Appellant appeared in person
Counsel for the Respondent:	Mr T. Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 May 2007
Date of Judgment:	15 May 2007