SZGQI v Minister for Immigration & Citizenship [2008] FCA 114 (26 February 2008)

Last Updated: 28 February 2008

FEDERAL COURT OF AUSTRALIA

SZGQI v Minister for Immigration & Citizenship [2008] FCA 114

Migration Act 1958 (Cth) s 426

Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908 cited
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 cited
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 cited
SZGQI v Minister for Immigration & Citizenship [2007] FMCA 1461 considered




























SZGQI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1849 OF 2007

BENNETT J
26 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1849 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZGQI Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	26 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the first respondent’s costs.

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 1849 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZGQI Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	BENNETT J
DATE:	26 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1 The appellant is a citizen of Nepal. The appellant applied for a Protection (Class XA) visa and claimed to have run a business in Nepal and also to have been a ‘creative active member’ of the Nepali Congress Party. He claimed that because of his affiliations and his membership of the Nepali Tarun Dal (the youth wing of the Nepali Congress Party) he was targeted for harassment by Maoists. He said that the local Maoists used to pressure him for money earned from his poultry business and that he had complained to the police who were ineffective in preventing the extortion.

2 After having been refused a protection visa by a delegate of the Minister, the appellant sought review of that decision. The Tribunal affirmed the delegate’s decision but on appeal to the Federal Magistrates Court, the matter was remitted to the Tribunal by consent. The second Tribunal again affirmed the delegate’s decision and the application to the Federal Magistrates Court was also dismissed.

THE APPEAL

3 On appeal from the Federal Magistrate’s decision (SZGQI v Minister for Immigration & Citizenship [2007] FMCA 1461) the appellant, who appears in person, raises the following grounds of appeal:

1. The Federal Magistrate erred in not finding that the Appellant was denied procedural fairness by the Second Respondent and/or did not receive a fair hearing as required by section 425 of the Migration Act 1958.

2. The Federal Magistrate erred in not finding that the decision of the Second Respondent was affected by apprehended bias.

3. The Federal Magistrate erred by refusing to contact witness and/or to advise or allow the Appellant of his right to call witness in circumstances where the evidence was readily available and was of critical importance.

The grounds are substantially similar to those raised before the Federal Magistrate in relation to the Tribunal’s decision.

Procedural fairness and apprehended bias

4 Before Lloyd-Jones FM the appellant raised a number of particulars of the grounds relating to the conduct of the hearing before the Tribunal. The appellant argued that the Tribunal hearing and decision making process were inadequate in that he was not accorded procedural fairness or given a real and meaningful opportunity to represent himself. Further, the appellant submitted that the Tribunal member did not bring an impartial mind to the issues or that the member had a preconceived view (at [12]). Many of these claims were directed to the method of questioning and the adequacy of interpreting. Counsel for the appellant acknowledged there was an overlap between the particulars of the first and second grounds (at [12]).

5 His Honour had the benefit of extensive written submissions and the appellant was represented by counsel. After the hearing, Lloyd-Jones FM listened to the tapes of the Tribunal hearing and read the transcript (at [21], [25]). He considered in some detail the matters raised in the particulars and in the written and oral submissions and found that there had been no denial of procedural fairness nor any evidence to support a claim of apprehended bias (at [13]-[33]).

6 The appellant makes no submissions on those aspects of his Honour’s reasons. I have reviewed those reasons for this finding and do not consider that his Honour erred.

7 The appellant also asserts that he had been ill at the time of the Tribunal hearing and suffered from depression in a way that affected his ability to participate in the hearing. There is evidence of a medical report before the Tribunal but that report does not mention a reduced ability of the appellant to attend and participate in the hearing. The appellant could not point to any other reference in the material before the Tribunal to suggest that the Tribunal should have been aware of the alleged state of his health. He said that he told his legal advisers but could point to no reference to the state of his health in any submissions to, or correspondence with, the Tribunal nor in the transcript of the hearing. I am not satisfied that there was any denial of procedural fairness on the part of the Tribunal in this regard.

Additional matters raised at the hearing

8 The appellant says that the Tribunal did not believe him. That engages merits review which is not a matter for this Court.

9 The appellant asserts that the Tribunal failed to consider evidence that he submitted from Amnesty International. There is reference to that evidence in the Tribunal’s decision and in the Federal Magistrate’s reasons (at [32]). It is described by the Tribunal as providing a chronology of correspondence in relation to the appellant’s case and evidence of his political profile and his family’s profile as business people in danger of being targeted as class enemies by Maoists. The underlying facts of the appellant’s personal position were accepted by the Tribunal. There is no basis for a finding of jurisdictional error in respect of this evidence.

10 The appellant asserts that the Tribunal made an error of fact in its statement that the appellant moved from Butwal to Kapilvastu and not the other way around. The appellant does not dispute the Tribunal’s finding that he had two houses in Nepal. Nothing has been shown to have arisen from that alleged error but, in any event, it is a complaint as to the fact finding by the Tribunal, which is a matter for the Tribunal and not for the Court.

11 There was correspondence between the appellant’s legal advisers and the Tribunal concerning applications for extensions of time for submissions and responses to letters provided under s 424A of the Migration Act 1958 (Cth) (‘the Act’). There was also an application for an adjournment of the hearing because the appellant’s solicitor (Ms Jankulovska), who was also his authorised recipient, was unavailable. The applications were referred to in the Tribunal’s reasons. There was no evidence of the consideration by the Tribunal of the application for the adjournment. The appellant had sought an expedited hearing of his application for review. Another solicitor represented the appellant at the hearing. At no time in the correspondence or in the submissions was there an assertion that the appellant had been disadvantaged by the time allowed for submissions and comment or denied any opportunity to present them. The written submissions before the Tribunal were extensive and were signed by Ms Jankulovska and said to have been prepared with the assistance of counsel. There is no evidence that her absence prejudiced the presentation of the appellant’s case.

12 I am not satisfied that the appellant was denied procedural fairness.

The failure to contact witnesses

13 The appellant provided documentary evidence in support of his claims. This included photocopies of letters which he claimed were threats and letters of demand from the Maoists and copies of letters attesting to his membership of the Nepali Congress Party which included assertions that he was on a Maoist ‘killing list’. Also included were letters purporting to be letters from the Butwal police, Butwal being where the appellant lived.

14 The Tribunal records that the appellant addressed its concern as to how the authors of the letters could hold office with the groups to which they claimed affiliation while the appellant claimed that he could not. As recorded by the Tribunal, the appellant said ‘that the political activities of those office holders were not relevant to his application. The [appellant] went on to say that the authors are still contactable at their offices if the Tribunal wishes to contact them’.

15 The Tribunal gave detailed reasons for not placing weight on the letters in support of the appellant’s claims. Included in those reasons were comments directed to the letters from the office holders in the Nepali Congress Party. The Tribunal observed that:

The authors of the letters are all purportedly active office bearers in organisations that the Maoists have opposed, so it [is] reasonable to assume that they are "active" and prominent, and yet these authors evidently continue to hold their posts and their ground (politically and geographically) without any evidence of such treatment as might lend weight to the [appellant’s] claims about the harm he faced and fears from the Maoists in relation to his profile and activities.

16 The Tribunal did not accept that what was happening to the other officers was irrelevant, as asserted by the appellant.

17 The Tribunal did not reject the authenticity of the letters. It accepted them at face value. In those circumstances, it is hard to see why it would have thought it necessary or desirable to take evidence from the authors of the letters or form the view that further inquiries would provide material centrally relevant to the decision to be made (cf Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155). If there were inconsistencies between the apparent safety of those authors and the appellant’s claims, as was put to the appellant by the Tribunal, that was a matter for the appellant to clarify. It was for the appellant to present his case. In any event, the Tribunal was under no duty to summons the authors of the letters or to inquire into their evidence (Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ; Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908 at [38]- [67] per Bennett J).

18 The appellant did not give written notice to the Tribunal that he wanted the Tribunal to obtain evidence from the authors of the letters (s 426 of the Act). The appellant’s reference to the availability of the authors could not even be said to amount to a request that the Tribunal contact them. The Tribunal noted the appellant’s comments as to their availability and chose not to contact those persons. No breach of s 426 of the Act has been demonstrated. The Tribunal had regard to the appellant’s "request" and was not required to comply with it (s 426(3)). There was no jurisdictional error because the Tribunal did not contact the authors of the letters. The Federal Magistrate was under no obligation to do so.

CONCLUSION

19 None of the grounds of appeal have been made out. No other jurisdictional error has been identified. No error on the part of the Federal Magistrate has been demonstrated.

20 It follows that the appeal must be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 25 February 2008

The Appellant was self represented.
Counsel for the Respondent:	S A Sirtes
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	18 February 2008
Date of Judgment:	26 February 2008