SZLEM v Minister for Immigration & Citizenship [2008] FCA 1159 (8 August 2008)

Last Updated: 8 August 2008

FEDERAL COURT OF AUSTRALIA

SZLEM v Minister for Immigration & Citizenship [2008] FCA 1159

SZLEM and SZLEN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 614 OF 2008

SUNDBERG J
8 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 614 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLEM First Appellant SZLEN Second Appellant

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

JUDGE:	SUNDBERG J
DATE OF ORDER:	8 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the first respondent’s costs of the appeal.








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 614 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLEM First Appellant SZLEN Second Appellant

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

JUDGE:	SUNDBERG J
DATE:	8 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellants are husband and wife. The background to this appeal and the claims made by the first appellant (the husband) are set out in the Magistrate’s reasons for judgment, and in more detail in the Tribunal’s decision. It is not necessary to record these matters again.

2 On 23 March 2007 the Tribunal wrote to the appellants informing them that it had considered the material before it, but was unable to make a favourable decision on that information alone. They were invited to appear before the Tribunal on a specified date to give evidence and present arguments. They did not attend on the adjourned date of which they were informed.

3 On 26 March 2007 the Tribunal wrote to the appellants saying that it had information that would, subject to any comments they may make, be the reason or part of the reason, for deciding that they were not entitled to a protection visa. The information was set out in an attachment to the letter. The attachment summarised the appellants’ claims and concluded as follows:

ISSUE 1: Based on country information it has seen (including but not limited to US Department of State, Country Reports on Human Rights Practices for 2005 – India; US Department of State, International Religious Freedom Report 2005, India; UK Home Office, India Country Report, April 2006; Amnesty International Report 2005, India; Human Rights Watch World Report 2005, India), the Tribunal may not accept the Hindu applicant would not be provided adequate state protection in India. Please comment. ISSUE 2: Based on the lack of sufficient detail provided in the applicant’s claims, the Tribunal may not accept the applicant has a well founded fear of persecution for the reasons claimed. Please comment. ISSUE 3: Even if the Tribunal were to accept the applicant may have had some problems in and or around his home in India, based on his evidence, the Tribunal may be satisfied the applicant could safely relocate within India, and that it is reasonable in all the circumstances to expect him to do so. Please comment. ISSUE 4: Please also:

• Advise as to whether any of the above information is inaccurate (with details of any alleged inaccuracies);

• Whether the Tribunal has omitted any of your material claims (with details of any alleged omissions); and

• By virtue of s 424, please provide any further evidence or submissions you wish in support of your case.

(The references to "the applicant" are to the husband, upon whose claims the wife relied.) The appellants were invited to comment on the information, and were told that if they did not comment, the Tribunal may make a decision on the review without taking any further action to obtain their views on the information. The appellants did not respond to the invitation. The Tribunal proceeded to make its decision and affirmed the delegate’s decisions not to grant protection visas.

4 After setting out the husband’s claims in detail, the Tribunal said at page 6:

[B]ased on the insufficient detail he provided, the Tribunal is not satisfied the applicant invokes refugee protection obligations in Australia. For instance, the applicant did not provide much if any detail on why he feared being killed by ‘unsocial elements’; why he feared the Indian ‘police, opposition leaders, thugs of Muslim gang etc’; how ‘unfaithful politician use their influence to mistreat [him]’; why he feared the state would be unwilling or unable to protect him; and why he feared that corrupt practices exacerbated his position. Neither did the applicant provide much if any detail as to his work as a ‘member of the Vishwa Hindu Parishad’; why ‘activists of Muslims were angry’ with him; why he was attacked; why he travelled to Admedabad; and why the police then attended the applicant’s house and said he was ‘involved in crime’.

The Tribunal concluded that, based on the claims provided, it was not satisfied that the husband’s claimed fear was well founded, or that the harm he says he feared was sufficiently serious to constitute persecution, or that an essential and significant reason he said he feared harm was for at least one of the Convention reasons.

5 The Magistrate rejected the appellants’ grounds of review. Only one of those grounds is a ground of appeal to this Court. That complains of a breach of s 424A(1) of the Migration Act 1958. After noting that the appellants had provided no particulars of the breach, the Tribunal observed that the object of the section was to provide procedural fairness by alerting an applicant to material that the Tribunal considers to be adverse to his or her case and affording an opportunity to comment upon it. The Magistrate said the s 424A letter complied with the requirements of the section, and the appellants had been accorded procedural fairness.

6 The ground of appeal is particularised as follows:

There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1).

The "certain adverse information" is not identified.

7 There is no reference in the Tribunal’s decision to any adverse information it used to affirm the decision under review. As is indicated above, the Tribunal’s decision was based on its lack of satisfaction on the insufficiently detailed information the appellants provided in support of their claims. Its decision was not based on any findings it made based on evidence or other material.

8 The appellants may have thought, wrongly, that the Tribunal relied on the country information identified in the attachment to its letter of 26 March 2007. The Tribunal did not in fact rely on that information. Even if it had, there would have been no breach of s 424A, because of the exclusion in sub-s (3)(a). The only other information upon which the Tribunal could have relied is that provided by the appellants themselves, which was summarised in the Tribunal’s letter and again in its reasons for decision. That information was not only provided by the appellants (sub-s (3)(b)) but was in fact drawn to their attention in its letter.

9 No error has been shown in the Magistrate’s decision, and the appeal must be dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated: 8 August 2008

Counsel for the Appellants:	The appellants appeared in person.
Counsel for the First Appellant:	B O’Donnell
Solicitor for the First Respondent:	DLA Phillips Fox

Date of Hearing:	5 August 2008
Date of Judgment:	8 August 2008