FEDERAL COURT OF AUSTRALIA SZJSE v Minister for Immigration and Citizenship [2007] FCA 732 Migration Act 1958 (Cth) ss 420, 422B, 424A SZJSE v MINISTER FOR IMMIGRATION AND CITIZENSHIP & REFUGEE REVIEW TRIBUNAL NSD 492 OF 2007 DOWNES J 17 MAY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 492 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZJSE Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: DOWNES J DATE OF ORDER: 17 MAY 2007 WHERE MADE: SYDNEY THE COURT ORDERS: 1. Appeal dismissed with 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 492 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZJSE Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: DOWNES J DATE: 17 MAY 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant is from India. He is aged 41 years. He arrived in Australia in May 2006. He applied for a protection visa, claiming a well-founded fear of persecution within the Refugees Convention on the ground of his Muslim religion. His application was refused on 1 August 2006 and that decision was affirmed by the Refugee Review Tribunal on 29 September 2006. The appellant appealed to the Federal Magistrates Court. His application was dismissed on 7 March 2007. He appeals to this court against that decision. 2 The Migration Act 1958 (Cth) commits the ultimate determination of the facts in refugee cases to the Refugee Review Tribunal. That Tribunal considers the matter afresh and on its merits. It is not a court. It substitutes its decision for that of the Minister, which is usually made through his delegate. The Parliament, representing the people, has thus created two tiers of decision-making during which an applicant for a protection visa has an opportunity to put forward a case on the facts. 3 The rights of persons claiming to be refugees in Australia do not, however, stop there. For practical purposes there is a review of the decision of the Refugee Review Tribunal in the Federal Magistrates Court with an appeal to this court. The appeal is, however, confined to an error of law amounting to jurisdictional error. 4 Behind every application for a protection visa lies a factual basis. The factual basis in the present case is that the appellant claimed to fear persecution by Hindu extremists and members of the political parties Bharatiya Janata Party, Shiv Sena and Telugu Desam Party. Before the Tribunal, he claimed that there had been seven attempts to kill him in his home in Hyderabad between 1993 and 2006. He escaped to Saudi Arabia from 1995 until 2006, visiting India several times during that period. 5 The Refugee Review Tribunal, constituted by Ms Philippa McIntosh, found the appellant's evidence to be vague and did not form a favourable impression of his general credibility. It considered that his continued residence in Mumbai from 1993-1995, during a period of significant religious violence, cast serious doubt on his claim to persecution at that time. Similarly, it considered that it was highly implausible that there had been multiple attempts to kill him in Hyderabad given that he repeatedly returned to his home. It concluded that the appellant did not have a well-founded fear of Convention-related persecution in India. 6 The reality of this case is that the appellant has lost it on the facts. However, the only appeal relates to the law. Accordingly, any appeal must address the law and not the facts, except in a small class of cases where errors of law relate to the facts. This raises problems for the many appellants who are in a similar position to the present appellant. However, if there is a relevant error of law an appeal will be successful. Accordingly, I now turn to that question. 7 The notice of appeal contains two grounds. The first ground is that the Federal Magistrates Court failed to accept the appellant's submissions as to errors made by the Tribunal. The second ground refers to an intention to file further grounds. The appellant has filed written submissions containing more detail of the grounds on which he relies. I propose to address those grounds in these reasons. 8 The first ground is that the Tribunal did not give the appellant an opportunity to put submissions relating to its finding that in oral evidence the appellant had said that he continued to live at a single address in Mumbai for almost three years after serious riots there in December 1993. The submission must extend to a denial of the opportunity to put submissions about what inference might be drawn from this finding. It is plain to me that the Tribunal did place some significance on this finding because of the way it is referred to in its reasons. There is of course no transcript of the Tribunal proceedings before me. I am confined to such information as to the hearing as appears in the reasons of the Tribunal. The appellant has not sought to put evidence before me which challenges that account. The reasons of the Tribunal clearly set out that the appellant said that the appellant had lived in a single address in Mumbai when he was there. The reasons also record that the appellant said that he had moved to Mumbai in 1990 where he worked at a branch of the same firm for five years and that he had then gone to work for a firm in Saudi Arabia in 1995. This oral evidence oddly conflicts with statements in a document prepared by the appellant, which was before the Tribunal and which is summarised in the Tribunal's reasons. In accordance with that document, the appellant left Mumbai some time after the riots and returned to his home city of Hyderabad, from which he went to Saudi Arabia. It is surprising that there does not seem to be any discussion by the Tribunal as to any reconciliation of this difference. The most that appears is that the Tribunal, when making its relevant finding, refers to the fact that the evidence that the appellant lived at a single address for the three years was "oral evidence". 9 The claim made by the appellant is that he should have had an opportunity to address the apparent conflict and to inform the Tribunal of the true facts. That raises questions of procedural fairness. This appeal falls to be decided pursuant to s 422B of the Migration Act, which provides that the Division in which that section appears is an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with. Section 424A deals with the obligation to make available information to an applicant. Contrary to a common misconception by many appellants in this court, that section does not require the Tribunal to make available any process of reasoning it might engage in. It simply requires the Tribunal to make information available. The information in the present case is the document prepared by the appellant in support of his application and the content of his oral evidence. This information is excluded from the effect of s 424A because that section does not require information given by the applicant to the Tribunal to be made available (s 424A(3)(b)). It follows that the claim under s 424A relating to this material must fail. 10 I have already said that the ordinary rules of natural justice or procedural fairness do not apply to the making available of this kind of information. However, it is important to note that the rules of procedural fairness would not require the making available to applicants of every piece of information that might be relied upon or every nuance of reasoning that might be engaged in by the Tribunal. It requires the Tribunal to give the applicant an opportunity to fairly address the issues relating to the applicant's claim to refugee status. On the facts of this case, I would hold, if it were relevant, that the Tribunal had given the appellant a sufficient opportunity to address the necessary issues including any issue associated with his residing in Mumbai. 11 The second matter raised by the appellant in his written submissions is a claim that he was not given an opportunity to comment on a finding relating to the cancellation of his Saudi Arabian work permit and his applying for a visa to visit Australia. This submission has no substance even on its full merits because the Tribunal very directly asked the appellant about these matters and told him that the Tribunal "could infer that, having been told his Saudi work permit would not be extended, he was looking for other options", which is precisely the finding that is impugned. 12 Other grounds of appeal claim that the Tribunal "did not act fairly and justly", that it did not comply with s 424A and that it did not comply with s 420. I do not think that any of these submissions have any substance and so far as s 424A is concerned the observations I have already made are relevant. 13 The findings that were made by the Tribunal are findings of fact which were open to it and the challenge to them involves an impermissible canvassing of whether those findings of fact were correct. I have also read the reasons for judgment of the Federal Magistrates Court which address some of the issues raised before me and other issues. I see no reason to conclude that these reasons involve any error of law. Indeed I agree with them. In all the circumstances the appeal must be dismissed and will be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes Associate: Dated: 23 May 2007 Counsel for the Appellant: The Appellant appeared in person with the assistance of an Urdu interpreter Counsel for the First Respondent: D Jordan Solicitor for the First Respondent: Australian Government Solicitor Date of Hearing: 17 May 2007 Date of Judgment: 17 May 2007