SZMFY v Minister for Immigration & Citizenship [2009] FCA 139 (23 February 2009)

Last Updated: 2 March 2009

FEDERAL COURT OF AUSTRALIA

SZMFY v Minister for Immigration & Citizenship [2009] FCA 139

MIGRATION – protection visa – appeal from the Federal Magistrates Court – whether the Refugee Review Tribunal complied with the requirements of s 424AA of the Migration Act 1958 (Cth)

Migration Act 1958 (Cth)

SZMFY v Minister for Immigration & Anor [2008] FMCA 1609
SZLQD v Minister for Immigration and Citizenship [2008] FCA 739
SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270

SZMFY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1924 of 2008

MARSHALL J
23 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1924 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	MARSHALL J
DATE OF ORDER:	23 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The appellant pay the first respondent’s costs of the appeal to be taxed in default of agreement.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1924 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	MARSHALL J
DATE:	23 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This morning, after hearing from the appellant and counsel for the first respondent, the Court announced that it would order that the appeal be dismissed with the appellant to pay the first respondent’s costs of the appeal to be taxed in default of agreement. The Court announced that it would publish its reasons for judgment this afternoon. The following reasons contain the Court’s reasons for making those orders.
2. The appellant has appealed from a judgment of a Federal Magistrate delivered on 24 November 2008 (SZMFY v Minister for Immigration & Anor [2008] FMCA 1609) which dismissed his application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal had affirmed a decision of a delegate of the first respondent Minister to refuse the appellant a protection visa.
3. The appellant is a Hindu from the state of Gujarat in India. He has a wife and two children who reside in India. The appellant bases his claim for refugee status on his political opinion.
4. The appellant claimed that he was an active social member of the Bhartiya Janta Party (‘BJP’) at the time of the infamous Godhra riots in 2002. The riots involved communal tension between Hindus and Muslims. The appellant said that he and his family were highly affected by the riots. The appellant told the Tribunal that certain unidentified people of the Muslim faith believed he was involved in violence against Muslims in a village about four kilometres from his own village in the 2002 riots. The appellant told the Tribunal that the people who suspected his involvement in the riots had doubts about him because he was a member of the BJP. After a while they started to threaten him on the phone. He stated that the threats started about a week after the violence in Sardarpur village in October or November 2002. He said that around that time he received several calls threatening to kill him and his family. He said that he reported the threats to the police but the police could not provide him with safety because the situation was out of control. He said that due to extreme fear, he withdrew his children from school and brought them back to his village. He also disconnected his phone around 6 to 7 months after he started receiving the threatening phone calls in 2002.
5. The appellant claimed that he was attacked in September 2006 when he went to live in Ahmedabad for a short while (‘the Ahmedabad incident’). The Tribunal noted that his application did not contain any information about this attack. He told the Tribunal that he was on his way to a pond when two or three unidentified people caught him and told him that he was involved in killing their families. He said that they beat him, but that because people were around, they could not cause him significant harm. He also told the Tribunal that he did not report the incident to the police (at [37]).
6. He further claimed that he was attacked on 28 August 2007. He said that when he was travelling to a temple with his spouse on his motor bike, two unidentified people attacked them near a crossing. He said that the assailants threatened him and said that they had been searching for him for a long time and they would kill him. This incident was reported to the police. However, there were some inconsistencies in his narration as to how many people attacked him and his wife, and how the incident was reported to the police. The appellant claimed to have signed an information report at the police station, but he later made no inquiries as to what happened in the investigation and was unaware of its outcome.
7. At the end of the hearing, the Tribunal referred the appellant to areas of concern relating to the credibility of his claims. It also alerted the appellant to the Tribunal’s belief that the appellant could obtain protection from threats if he returned to Gujarat. The appellant was invited to comment. He offered to obtain proof from India in relation to the withdrawal of his children from their schools in 2003, the first information report given to the police in 2007 and documents showing his position in the BJP party. The Tribunal said that it did not believe that he should be given time to present that material as the material would not add anything to what he had told it.

The Tribunal’s Reasons

8. In its detailed reasons, the Tribunal carefully analysed the appellant’s case and found several inconsistencies in it. However, the Tribunal gave the benefit of doubt to the appellant and accepted certain of his claims. In respect to the threats, it said that the ‘Tribunal has given the applicant the benefit of the doubt and has accepted that the threats started in 2002 and may have continued until early 2003 although infrequently’. However, in light of the nature of the appellant’s case, the Tribunal said:

...the Tribunal is not satisfied that there is a real chance that the verbal threats would occur again if the applicant were to return to India in the reasonably foreseeable future as, on the applicant's own evidence he has not received any further verbal threats since at the latest 2003.

9. In light of the above, the Tribunal concluded that there was not a real chance that the appellant would be threatened if he was returned to India.
10. The Tribunal did not accept that the Ahmedabad incident took place. It said:

The Tribunal does not accept the applicant's claims in relation to the Ahmedabad, incident as being truthful. The Ahmedabad incident occurred in September 2006 nearly 3 years after the threats ceased and was the first time the applicant claimed he had been attacked. The Tribunal discussed with the applicant that he had not mentioned this incident in his statement and asked for his comment or response. They stated that the student who had helped him to prepare his statement as well as himself had made a mistake. However, the applicant also stated that the statement had been read back to him prior to him signing it. The Tribunal does not accept the applicant's explanation. This was the first violent incident that had happened to the applicant and this is the type of incident you would expect to be in a statement provided to the Department in support of a protection visa application. That an incident of this nature was not included in the applicant's statement indicates that it is a recent invention.

11. In respect of the alleged attack on 28 August 2007, the Tribunal said at [75] of its reasons that ‘[d]espite the Tribunal's concerns about the incident claimed to have occurred on 28 August 2007 the Tribunal has decided to give the applicant the benefit of the doubt and accept that the incident occurred’.
12. The Tribunal ultimately concluded that the appellant would have recourse to State protection in India and it was not satisfied on the evidence before it that the appellant possessed a well founded fear of persecution if he were returned to India as he is not ‘unwilling or unable to avail himself of the protection of that country’. In reaching that conclusion, the Tribunal noted at [77] of its reasons for decision:

Country information indicates that the applicant as a member or former member of the BJP, a Hindu and a Patel would obtain support and assistance from the police if he had been attacked as claimed and if the police were able to do so. The applicant, although reluctantly, did report the incident to the police and a FIR was lodged. The applicant did not claim that he had to pay a bribe to lodge the FIR or that the police refused to accept the FIR. The applicant stated that he reported to the police that unknown people attacked him. The applicant was not able to tell the Tribunal what was happening in relation to this FIR when asked directly. The applicant stated that it was in a different area and he does not have any interest in the police. Therefore, the police may be investigating the matter as there is nothing to indicate that they have refused to investigate...Further, even if the 28 August 2007 incident was more to do with him being a member of the BJP or former member of the BJP, the country research indicates that the police are strongly influenced by the BJP and that the Patels have strong links with the BJP and, as referred to above, he lodged and FIR which was accepted.

13. In light of the country information available to the Tribunal and after considering the appellant’s case, with respect to the issue of State protection, The Tribunal concluded that:

The applicant by lodging the FIR has indicated that he is not unwilling to seek state protection from the police in Gujarat and, on his evidence at the hearing, he has not been refused or prevented from obtaining state protection for a Convention reason and the Tribunal finds accordingly. Further, the Tribunal also finds, for the same reasons, that if the applicant were to return to India in the reasonably foreseeable future he would continue to be able to obtain the police support and assistance.

14. For the above reasons, the Tribunal refused to grant the appellant a protection visa.

The Federal Magistrate’s Reasons

15. The Federal Magistrate noted the Tribunal’s conclusion that there was no real chance of the appellant being threatened if he were to be returned to India, and that ultimately, the Tribunal made a positive finding that the appellant could avail State protection in India.
16. In the Court below, the appellant advanced various grounds that were contained in his original and amended application for review. The Magistrate carefully dealt with all the grounds advanced by the appellant and dismissed them. The appellant’s first ground in the Court below concerned his contention that ‘the Tribunal erred in law by considering whether the persecution claimed by the applicant was solely for a Convention reason’. The Federal Magistrate dismissed this ground. In doing so, the learned Federal Magistrate said at [17] of his judgment:

...I am unable to detect any support in the Tribunal's reasoning for such an argument. I am not persuaded that the Tribunal made that error. Indeed, a characterisation of the reasons for the harm feared by the applicant did not form any part of the reasoning of the Tribunal.

17. It is apparent from the Tribunal’s reasons that it gave the appellant the benefit of the doubt and accepted some of his claims notwithstanding the inherent inconsistencies in his case. It concluded that there did not exist a real chance that the appellant would continue to receive the threats, and ultimately rejected the appellant’s case on the basis that he had recourse to State protection. The learned Federal Magistrate correctly dismissed the above ground.
18. In the Court below, the appellant advanced certain grounds that lacked merit and the Federal Magistrate accordingly dismissed them. The appellant raised a ground concerning the incorrect application of the principles of relocation and the learned Federal Magistrate noted that the issue of relocation did not play any role in the Tribunal’s reasoning and, accordingly, dismissed the ground.

The Federal Court Appeal

19. By his notice of appeal filed on 12 December 2008, the appellant has appealed from the whole of the judgment of the Federal Magistrate. He contends that the Tribunal failed to comply with the mandatory procedure prescribed by the Migration Act 1958 (Cth) (“the Act”), in failing to comply with section 424AA(b)(iv). He contends that the Tribunal should have given him an opportunity to obtain certain documents from India that corroborated his claims. A similar ground was raised in the Court below, and I respectfully agree with the learned Federal Magistrate’s reasons with respect to this ground.
20. As noted above, the appellant sought additional time to submit documentary proof from India in relation to three matters and this was declined by the Tribunal on the basis that the relevant documentation would not add anything that the appellant had told the Tribunal. The Federal Magistrate correctly noted at [25]:

...the Tribunal explained to the applicant why it did not regard these suggested proofs as addressing its concerns...ultimately its decision did not rest upon a disbelief of the applicant concerning the matters. Prima facie, it is difficult to identify any jurisdictional defect in the Tribunal’s opinion under s 424AA(b)(iv).

21. The Tribunal accepted certain claims made by the appellant and refused his application on the basis of its finding as to State protection. The additional documents that the appellant sought to obtain from India would have had no bearing on the Tribunal’s decision and the appellant did not suffer any practical unfairness. In my view, the Federal Magistrate correctly concluded that prima facie no breach of s 424AA could be established. Regardless of the correctness of the above argument, it is useful to state that a mere non-compliance with s 424AA on its face will not have jurisdictional consequences. This is because the operation of s 424AA is closely connected to s 424A. It is useful to briefly explain this relationship. Section 424AA states that 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:
...
(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.

22. As the Court said in SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 at [12]:

[Section 424AA] places no obligation on the Tribunal but enables it, if it so chooses, to orally give to an applicant any information which the Tribunal considers would be part of the reason for affirming the decision under review. It does not compel the Tribunal to orally give an applicant any particulars of country information which it intends to rely on. So much is apparent from that part of the explanatory memorandum accompanying the bill which introduced s 424AA where the following was said:

New section 424AA provides a new discretion for the RRT to orally give information and invite an applicant to comment on or respond to the information at the time that the applicant is appearing before the RRT in response to an invitation issued under section 425. This will complement the RRT’s existing obligation under section 424A, in that, if the RRT does not orally give information and seek comments or a response from an applicant under section 424AA, it must do so in writing, under section 424A. The corollary is that if the RRT does give clear particulars of the information and seek comments or a response from an applicant under section 424AA, it is not required to give the particulars under section 424A.

23. Section 424A(3) identifies material that is not ‘information’ to which s 424A applies. Material that is not ‘information’ for the purposes of s 424A of the Act is also not ‘information’ for the purposes of s 424AA. See SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 at [27] per Cowdroy J.
24. The Federal Magistrate correctly said at [22]:

The construction has the consequence that, even if there were any failure to follow procedures described in 424AA, it would also be necessary to establish that the Tribunal’s decision relied upon some piece of information which would have been required to be put to an applicant under s 424A(1) for written comment. It also means that the exclusions of s 424A(3) therefore also apply as exclusions to any jurisdictional requirement to observe s 424AA as an alternative to the procedure under s 424A(1).

Subsection 424A(3) states that:

             (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 for review; or

                    (ba)  that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department...

25. The documents that the appellant sought to obtain from India clearly related to what he had already told the Tribunal. The learned Federal Magistrate correctly stated that:

In the present case, the information which was put to the applicant pursuant to its purported s 424AA procedure was, in my opinion, clearly information which was excluded from obligations of a written or oral invitation to comment, by effect of s 424A(3)(a), (b) and (ba)...I therefore accept the Minister's submission that, if any failure of procedure under 424AA occurred, it did not have jurisdictional consequences.

26. I respectfully agree with the learned Federal Magistrate’s assessment on the above issue, and cannot find any appeallable error in the reasons of the Federal Magistrate.
27. As the appellant was self-represented, in fairness to him I have carefully considered the decision of the Tribunal and the judgment of his Honour below. I can find no jurisdictional error in the former. I can discern no appeallable error in the latter.
28. For the above reasons, the appeal is dismissed with costs.
    

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated: 23 February 2009

The Appellant appeared for himself.

Counsel for the Respondents:		Mr J Potts
Solicitor for the Respondents:		Clayton Utz

Date of Hearing:	23 February 2009
Date of Judgment:	23 February 2009