SZLJF v Minister for Immigration and Citizenship [2009] FCA 158 (17 February 2009)

Last Updated: 26 February 2009

FEDERAL COURT OF AUSTRALIA

SZLJF v Minister for Immigration and Citizenship [2009] FCA 158

Migration Act 1958 (Cth) s 424A

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 considered
SZEEU v Minister for Immigration and Citizenship [2008] FCA 269 applied
SZKLK v Minister for Immigration [2008] FCA 1125 considered
SZLPJ v Minister for Immigration and Citizenship [2008] FCA 1721 cited

SZLJF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD1852 of 2008

LOGAN J
17 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1852 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLJF Appellant

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

JUDGE:	LOGAN J
DATE OF ORDER:	17 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed, and
2. The Appellant is to pay the First Respondent’s costs of and incidental to the appeal to be taxed, if not agreed.
   

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	NSD1852 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLJF Appellant

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

JUDGE:	LOGAN J
DATE:	17 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Appellant is a citizen of India. He came to Australia on 11 May 2007. Three days later he lodged with the Department of Immigration and Citizenship an application for that type of visa under the Migration Act 1958 (Cth) (the Act) known as a protection visa. Later that month, on 29 May 2007, a delegate of the Minister for Immigration and Citizenship (the Minister) refused the visa application. The Minister is the active party Respondent to the present appeal. The following month, on 22 June 2007, the Appellant sought the external merits review of the Minister’s delegate’s decision by the Refugee Review Tribunal (the Tribunal). On 9 August 2007, the Tribunal decided to affirm the decision of the Minister’s delegate. The Tribunal’s decision was the subject of a challenge by way of judicial review proceedings in the Federal Magistrates Court.
2. On 29 January 2008, the Federal Magistrates Court made an order promoted by the agreement of the parties that the judicial review application be granted. So it was that the Tribunal’s decision was set aside and the matter remitted to the Tribunal for hearing and determination according to law. In so doing, the Federal Magistrates Court noted that the basis of the setting aside of the Tribunal’s decision was a breach on the part of the Tribunal of s 424A(1)(a) of the Act. That breach was constituted by a failure to provide particulars of information that formed the reason, or part of the reason, for the affirming of the Minister’s delegate’s decision. The court’s order of 29 January 2008 was not in the appeal book as prepared, but I permitted that order to be read in the course of the appeal.
3. On the second occasion that the review was heard the Tribunal, differently constituted, decided again to affirm the decision of the Minister’s delegate. It did so on 19 May 2008 with its reasons being communicated to the Appellant under cover of a letter dated 5 June 2008. A further judicial review proceeding in the Federal Magistrates Court followed. On this occasion, on 12 November 2008, for reasons which were given that day, the Federal Magistrates Court decided to dismiss the judicial review challenge then made. It is from that later Federal Magistrates Court decision that the Appellant now appeals to this Court.
4. There are two grounds of appeal:
   1. The Honourable FM failed to consider the grounds of my application, such as error of law made by the Tribunal, not giving me the opportunity of the adverse information in the possession of the Tribunal. The tribunal it was open to the Tribunal to find that the appellant was a refugee within the meaning of the Act.
   2. The tribunal made jurisdictional error by failing to accord procedural fairness to consider that the applicant is a Christian, or that he or any member of his family was involved in actual perceived Christian related activities in India or in Australia.
5. The Tribunal is required to give accurate particulars of adverse information to the applicant. Its failure to do so is jurisdictional error. see SZEEU v Minister for Immigration and Citizenship [2008] FCA 269
6. The Appellant’s application for a protection visa had been grounded upon his claim to fear persecution in India on account of his Christianity. More particularly, the claim was propounded upon his alleging to have preached to Dalits in Trivandrum, and encouraged their conversion thereby violating anti-conversion laws. He alleged that he had been arrested and held for three weeks and had been mistreated. He also alleged that he had been again arrested in January 2006 after what he described as the “Muslim dominated” CPI(M) had achieved power in Kerala. He claimed that the administration of his church had been told not to admit Muslims into the precinct and that he had been followed around Trivandrum. After the events so related the Appellant had visited Singapore. On his return he stated that he had been arrested and accused of converting Hindus. He further stated that he had been released on payment of one lakh, of Indian Rupees, and that he had been ordered to cease his religious activities.
7. His claim, further, was that he, his brother and his brother-in-law had subsequently resumed their Christian charitable activities in areas outside Trivandrum, but they had been arrested again in November 2006 and accused of procuring conversions. He further claimed that he, his brother and his brother-in-law had been threatened with deportation to Pakistan and ordered to cease all of their religious activities. It was on the strength of these claims that upon arrival in Australia the Appellant advanced his application for a protection visa.
8. The long and the short of things is that these claims were not accepted by the Tribunal when it came to rehear the review application. The Tribunal’s reasons set out at considerable length the course of evidence that was given and responses to Tribunal questions in a summary way.
9. The Appellant advanced diverse grounds of challenge to the Tribunal’s decision in the Federal Magistrates Court. It is quite apparent from the reasons for judgment of that court that the learned Federal Magistrate dealt separately with each of the challenges advanced.
10. One of those challenges centred upon the Tribunal’s finding that the Appellant was not a Christian. In furtherance of the ground of challenge in respect of that finding, the Appellant annexed to the documents lodged in the Federal Magistrates Court a birth certificate and two letters from St Joseph’s Church in Santhipuram. These letters were dated 23 October 2008. As the learned Federal Magistrate noted at para 11, they were clearly not in evidence before the Tribunal. The learned Federal Magistrate observed that, the court was unable to accept those documents as new evidence. His Honour further observed that the documents “should have been put before the Tribunal but were not.”
11. In the sense that the letters of 28 October 2008 did not, apparently at least, exist at the time when the Tribunal came to hear and decide the review application afresh, the letters could not possibly constitute evidence that should have been put before the Tribunal. However, the underlying sentiment in the particular passage of the learned Federal Magistrate’s reasons for judgment, is plainly enough a conclusion on his part that it was no part of the Federal Magistrates Court’s role to conduct merits review. It seems that part, at least, of ground 1 in the notice of appeal is directed to the failure of the Federal Magistrates Court to consider this fresh evidence and thus, so it is said, to deny procedural fairness to the Appellant. Once it is appreciated that it was no part of the Federal Magistrates Court’s role to conduct merits review, there can be no substance in this basis of challenge.
12. A procedural fairness obligation undoubtedly attended the Federal Magistrates Court but it is quite clear that that court discharged the obligation by affording to the Appellant an opportunity to be heard in respect of the challenge he made to the Tribunal’s decision.
13. Another aspect of ground 1 in the notice of appeal would seem to be an alleged failure on the part of the Federal Magistrates Court to appreciate that the Appellant had not been given procedural fairness by the Tribunal. The learned Federal Magistrate dealt with this aspect of the challenge at para 12 of his Honour’s reasons. His Honour there noted that the information, which was said to have been required to have been put to the Appellant by the Tribunal, was not particularised in any way. That was, likewise, a feature of the way in which the Appellant developed submissions in respect of this aspect of ground 1 of the notice of appeal. The Federal Magistrate made reference at para 12 to a letter dated 3 July 2007, appeal book page 75, which had been sent by the Tribunal to the Appellant prior to the first review application being determined. In that letter, the Tribunal had stated:

You received your visa on the same day as two other persons with whom you arrived in Australia, on the same flight and with whom you are now living. Your typed statement of claim submitted to the tribunal is the same in many respects as the typed statements of claims submitted by the other two persons with whom you are living. The review applications submitted by all of you appear to have been hand-written by the same person. This information is relevant because this information may lead the tribunal to conclude that your claims have been concocted for migration purposes and not to give any weight or credence to the personal details in your claims.

14. On the rehearing, the Tribunal remarked in its reasons, at para 102, appeal book page 127:

As noted, the RRT has dealt with another two applicants who have made similar claims. The tribunal has not in any way used this matter in an adverse manner to the applicant. The tribunal has assessed the applicant’s claims and evidence on their own merit.

15. The notice of appeal does not in terms refer to s 424A. One has to be careful in such circumstances not to create, judicially, a grounded challenge which is not present in the case advanced for an Appellant. Equally though, if under the general rubric of a procedural fairness challenge, a manifest jurisdictional error of that kind were present, then subject to according procedural fairness to the Minister, it may nonetheless be incumbent on the part of this Court on appeal to consider the ramifications of that manifest error.
16. Section 422B of the Act provides that the provisions within Div 4 of Pt 7 are to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule, in relation to the matters Div 4 deals with. Section 424A is found within Div 4 of Pt 7.
17. I do not apprehend any error on the part of the Federal Magistrates Court in failing to find that such procedural fairness as is required by s 424A was not given to the appellant. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at para 17, the High Court remarked of s 424(1)(a):

The use of the future conditional tense (would be) rather than the indicative, strongly suggests that the operation of section 424(1)(a) is to be determined in advance – and independently – of the tribunal’s particular reasoning on the facts of the case.

18. This acknowledged, it is permissible, in my opinion, to draw an inference that, even prospectively, the adverse contingency, which generated on the part of the first Tribunal, the letter of 3 July 2007, did not form part of the second Tribunal’s thinking. That inference, to me, seems to be open from para 102 of the Tribunal’s reasons. I note that in SZLPJ v Minister for Immigration and Citizenship [2008] FCA 1721, Perram J adopted a similar approach: see especially para 16 of his Honour’s reasons for judgment.
19. There was also advanced, in the course of oral submissions for the Appellant, the argument that the Federal Magistrates Court and it seems also the Tribunal, were in some way biased. There is not a scintilla of evidence which would support an apprehended bias challenge to the decision of the Federal Magistrates Court. In particular, the fact that that court gave its reasons for judgment upon the day on which the judicial review application was heard, does not support such a finding. As for the Tribunal proceeding, there was not developed before me any argument that the hearing before the Tribunal, in terms of the procedures adopted by the Tribunal, and having regard to its reasons, was such as would give rise to an apprehension of bias of the kind that I found present in SZKLK v Minister for Immigration [2008] FCA 1125.
20. What I have already observed in relation to s 424A is sufficient in the context of the present case to dispose of ground 2 of the notice of appeal. There was, in the circumstances, no obligation which arose under that section on the part of the Tribunal to give particulars in respect of the coincidence of lodgement of visa applications. There was no particularisation in the notice of appeal or oral submissions of what might otherwise constitute the adverse information. It is to be remembered, having regard to what was observed in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at para 18, that the Tribunal’s subjective appraisals, thought processes, or determinations, do not constitute “information” for the purposes of s 424A.
21. Quite how the case SZEEU v Minister for Immigration and Citizenship [2008] FCA 269 referred to in ground 2 was relevant was not developed in the Appellant’s written or oral submissions. I have considered that case, which I note was decided on 7 March 2008. Its relevance to ground 2 is not immediately apparent.
22. All in all, this is just one of those cases where the Tribunal reached views concerning the claim made for a visa, based upon an assessment of the Appellant’s credibility. Having considered the Tribunal’s reasons, there is nothing remarkable in the Federal Magistrates Court’s conclusion that the Tribunal was entitled to reach the views that it did. Findings of credit, providing they are not indicative of illogicality, are matters, “par excellence”, for the Tribunal.
23. It follows that the appeal must be dismissed.
    

I certify that the preceding twenty-three (23) 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 Appellant:	The Appellant appeared in person
Counsel for the Respondents:	Mr P Cleary
Solicitor for the Respondents:	Clayton Utz Lawyers

Date of Hearing:	17 February 2009
Date of Judgment:	17 February 2009