SZJLN v Minister for Immigration and Citizenship [2009] FCA 144 (16 February 2009)

Last Updated: 26 February 2009

FEDERAL COURT OF AUSTRALIA

SZJLN v Minister for Immigration and Citizenship [2009] FCA 144

Migration Act 1958 (Cth) ss 422B, 424A

Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 cited
Re Minister for Immigration; Ex parte Duraraijasingham [2000] HCA 1; (2000) 168 ALR 407 applied
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 applied
SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 cited

SZJLN and SZJLO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD1237 of 2008

LOGAN J
16 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1237 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJLN First Appellant SZJLO Second Appellant

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

JUDGE:	LOGAN J
DATE OF ORDER:	16 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The Appellants are to pay the First Respondent’s costs fixed in the sum of $2,870.
   

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	NSD1237 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJLN First Appellant SZJLO Second Appellant

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

JUDGE:	LOGAN J
DATE:	16 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The male Appellant and his wife, who is also an Appellant on this appeal, are each citizens of India. They came to Australia on 17 February 2006. On 30 March 2006, the male Appellant lodged with the Department of Immigration and Citizenship an application for what is known as a protection visa. The male Appellant’s wife also sought a visa of that kind but her claim for a visa was and has remained a derivative one. By that I mean that she did not, before the Department or later, lodge any separate claim to that of her husband. On 3 May 2006, a delegate of the Minister for Immigration and Citizenship (the Minister), who is the active Respondent to this appeal, refused the protection visa applications.
2. As was their right under the Migration Act 1958 (Cth) (the Act), the Appellants sought the external merits review of that Ministerial delegate’s decision by the Refugee Review Tribunal (the Tribunal). On 5 September 2006, the Tribunal affirmed the decision of the Minister’s delegate. In turn, the Appellants sought the judicial review of that decision by the Federal Magistrates Court. On 9 October 2007, the Federal Magistrates Court quashed the decision of the Tribunal and ordered that the matter be remitted to the Tribunal for determination according to law. On 17 March 2008, a differently constituted Tribunal decided, for reasons which the Tribunal published, that the decision made in 2006 by the Minister’s delegate should again be affirmed. That decision and those reasons were published on 25 March 2008.
3. A further judicial review application to the Federal Magistrates Court ensued. On 21 July 2008, for reasons given that day, the Federal Magistrates Court on this occasion dismissed the judicial review application. It is from that decision that the Appellants now appeal to this Court.
4. The male Appellant appeared today on his own behalf and that of his wife. He advanced oral submissions to supplement those earlier lodged in writing by him with the Court.
5. Those submissions included the tendering of a document referred to in the decision of the Federal Magistrate at paras 13 - 17. The document concerned seemed to me to be one which might have been included in the appeal book. Its only relevance lay in its possible grounding of a procedural fairness challenge, or at least a challenge on the basis that the Tribunal had not discharged its obligation of affording the Appellants a hearing. Obviously enough, it could have no relevance whatsoever to any agitation of the factual merits of a claim for a protection visa. The document concerned became exhibit 1 on the appeal for that limited purpose.
6. A perusal of the reasons of the Tribunal discloses that it was found in the male Appellant’s favour that he had become a member of a movement known as Shiv Sena in 2001. The claim made by the male Appellant for a protection visa very much revolved around the role he said that he had played in Shiv Sena, and the prospect of his encountering an inability to return to India, having regard to that role and to the claimed disposition on the part of Muslims to those who had been involved with Shiv Sena.
7. The Tribunal had before it what it described as independent country information concerning rioting which had occurred in 2002 in Gujarat and subsequent communal violence as between members of the Hindu and Muslim faiths in that state of India. The Tribunal had to reach a view about the credibility of the claims made by the male Appellant in respect of his involvement and, further, of his claims in respect of the unwillingness of police authorities to offer protection. In the result, the Tribunal made findings which were based upon inconsistencies which the Tribunal detailed with some precision in its reasons as between the written statement in support of the protection visa claim and oral evidence which the male Appellant gave before the Tribunal.
8. Having accepted that the Appellant was a member of Shiv Sena in 2001, the Tribunal commented:

When considering the evidence as a whole, the Tribunal finds that there are a number of inconsistencies between the first-named applicant’s written evidence and his oral evidence, between the oral evidence given by him at the first hearing

...

and the second hearing. As well as internal inconsistencies and changes in the oral evidence given by the first-named applicant at the hearing, in view of its findings and for reasons referred to above, the Tribunal finds that the first-named applicant is not a witness of truth and was prepared to exaggerate his role in Shiv Sena and fabricate his claims in relation to persecution to give himself a profile of a refugee. In view of the above findings, the Tribunal does not accept that the first-named applicant has been persecuted in India or that there is any real basis for his claims to fear persecution. The Tribunal is satisfied that if the first-named applicant returns to India in the foreseeable future, there is no real chance that he or his wife will be at risk of being searched for, attacked or killed because of his involvement or perceived involvement in Shiv Sena and/or riots.

9. Before publishing the reasons in which that paragraph appeared, the Tribunal had afforded the male Appellant an opportunity to submit a further document, namely an English translation of a document relating to his involvement with Shiv Sena. It is that document in its English translated form which is exhibit 1. The time granted by the Tribunal was until 1 February 2008. As at the time when the Tribunal committed its decision and reasons to writing, 17 March 2008, there had been no submission of this translated document. It is worthy of note that the Appellants were, in the later proceedings before the Tribunal and in their dealings with the Tribunal, represented by a solicitor.
10. Another step which the Tribunal took prior to giving its decision was to write to the Appellants on 13 February, pursuant to what the Tribunal perceived to be its obligation under s 424A of the Act. That letter sought a response in respect of particular identified items in the letter in writing by 27 February 2008. There was no response to the invitation in that letter.
11. As seems to be the Tribunal’s practice, the Tribunal, having reached its decision, then notified the Appellants of that and invited them to attend at the handing down of the decision on 25 March 2008. The Tribunal did this by way of a letter addressed to the Appellants’ solicitor. I record this because it highlights an event which one might apprehend ought to have served as something of an alarm bell in relation to either the submission of the translated document or at least the contacting of the Tribunal to highlight a difficulty being encountered in relation to that translation.
12. There are two identified grounds of appeal in the notice of appeal from the Federal Magistrates Court. In essence, they are:
    1. that the Federal Magistrates Court failed “to find error of law, procedural fairness and relief under s 39B of the Judiciary Act 1903 (Cth)”; and
    2. that the Federal Magistrates Court “erred in not finding that the tribunal member had not dealt with any substantive way a key component of my claim that my life will be under threat on our return back to India. By not dealing with this matter there was a constructive failure to exercise jurisdiction on the part of the tribunal or a lack of procedural fairness”. [sic]
13. The Federal Magistrates Court found that there had not been a denial of procedural fairness.
14. Section 422B of the Migration Act provides that the provisions found within Div 4 of Pt 7 are an exhaustive statement of the natural justice hearing rule. Those provisions include s 424A. In this instance it is at least arguable, having regard to the High Court’s decision in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190, that the Tribunal went beyond the obligation imposed on it by s 424A of the Act. I make that observation because it is possible to regard the letter which the Tribunal sent as disclosing the thought processes of the Tribunal. Be this as it may, it is certainly not a basis for a jurisdictional error case that the Tribunal exceeded the obligation imposed on it by s 424A.
15. This otherwise is a case where there is no basis for concluding that the Federal Magistrates Court was in error insofar as any jurisdictional error in relation to s 424A is concerned. The first ground of appeal has about it a generality such that when one departs from an apprehension that lying behind it might be a s 424A based challenge, one is in the area of speculation.
16. Having regard to the way in which the argument developed this morning it seems to me that the procedural fairness challenge may well be on the basis of a failure to take into account the translated document, exhibit 1. The Federal Magistrate dealt in what, in my opinion, is an unexceptional way with a challenge of that kind as the learned Federal Magistrate apprehended it. The short point is that the Appellants were given an opportunity to submit a translated document. It is just that, for whatever reason, that opportunity was not availed of. As it happens, the essence of the document, as the learned Federal Magistrate notes, is no different to a finding made in the male Appellant’s favour; namely, membership of Shiv Sena in 2001.
17. The second of the grounds of appeal, insofar as it goes beyond procedural fairness, is not only a ground which does not appear to have been a basis of challenge before the Federal Magistrates Court, but also, in any event, a ground which would not warrant leave to advance it in this appeal. The Tribunal, in the passage from which I have quoted, looked to and made an express finding in respect of the foreseeable future in the event of a return to India. In this regard, the Tribunal referred to findings it had already made. It suffices to note that those findings were based on a preference of independent country information as to an absence of a particular threat of prosecution. There is, in the Tribunal’s reasons in this case, no error of the kind described by Allsop J (as his Honour then was) in SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 at paras 28, 29 and 30.
18. What I have stated is sufficient to dispose of the appeal in respect of the grounds stated in the notice of appeal. Neither has any merit.
19. On behalf of the Minister the course was taken, very properly, to engage with submissions advanced in the Appellant’s written submissions, which did not find their way into the notice of appeal.
20. One sees in those written submissions what, in substance, is a challenge to the credibility findings made by the Tribunal. Such findings are uniquely, “par excellence”, as McHugh J stated in Re Minister for Immigration; Ex parte Duraraijasingham [2000] HCA 1; (2000) 168 ALR 407 at para 67, matters for the Tribunal. When one reads the Tribunal’s reasons those findings are logical and reasonable; reasonable in the sense that they are made upon a basis that is readily discernible from the findings of fact the Tribunal chose to make on the material that it had before it.
21. There is no merit in a challenge which would seek to overturn the Federal Magistrate’s decision on the basis that the Tribunal’s reasons were unreasonable and that the Federal Magistrates Court should have so found. It is important to recall, and the Appellant’s submissions both written and oral as is frequently the case do not, and did not, evidence this, that it is no part of the role of the judiciary, either in the Federal Magistrates Court or on this Court, to engage in the making of value judgments or fact finding in relation to whether or not one is satisfied in terms of the Act that there is a claim for a protection visa. To do so is to violate the role consigned to the judiciary and to ignore the counsel provided by Brennan J, as his Honour was, in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 30, about a threat to the legitimacy of judicial review by descending into matters that are consigned by the legislature to the value judgment of either the Minister, his delegates or the Tribunal.
22. For these reasons then the appeal must be dismissed.
    

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated: 25 February 2009

Counsel for the Appellants:	The male Appellant appeared in person on his own behalf and on behalf of his wife, the female Appellant.
Counsel for the Respondents:	Mr P Cleary
Solicitor for the Respondents:	Sparke Helmore

Date of Hearing:	16 February 2009
Date of Judgment:	16 February 2009