SZLML v Minister for Immigration and Citizenship [2009] FCA 83

FEDERAL COURT OF AUSTRALIA

SZLML v Minister for Immigration and Citizenship [2009] FCA 83

MIGRATION – application for protection visa Held: appeal dismissed Migration Act 1958 (Cth) SZEEU v Minister for Immigration, Multicultural & Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2 SZLML v Minister for Immigration & Anor [2008] FMCA 1219 SZLXI v Minister for Immigration and Citizenship (2008) 103 ALD 589; [2008] FCA 1270 SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701

SZLML v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1729 of 2008

JAGOT J

13 February 2009

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1729 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLML

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JAGOT J

DATE OF ORDER: 13 FEBRUARY 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant is to pay the first respondent's costs as agreed or taxed. 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 NSD 1729 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLML

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: JAGOT J

DATE: 13 February 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal against an order of the Federal Magistrates Court of 17 October 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal in connection with refusal of a protection (class XA) visa under s 65 of the Migration Act 1958 (Cth) (SZLML v Minister for Immigration & Anor [2008] FMCA 1219). Under s 36(2) of the Act the criterion for a protection visa is that the applicant for the visa is (relevantly) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (meaning, in accordance with s 5(1), the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees). Section 474 of the Act protects "privative clause decisions" (defined to include decisions with respect to protection visas) from challenge other than on the grounds of jurisdictional error. 2 The appellant is a citizen of India. He arrived in Australia on 10 April 2007. On 19 April 2007 the appellant applied to the Department of Immigration and Citizenship for a protection visa. A delegate of the respondent Minister refused the application on 31 May 2007. On 29 June 2007 the appellant applied to the Tribunal for a review of that decision. The Tribunal affirmed the decision on 3 September 2007. The appellant appealed to the Federal Magistrates Court, filing an amended application on 25 July 2008. The Federal Magistrates Court dismissed the appeal on 17 October 2008. 3 On 4 November 2008 the appellant filed a notice of appeal to this Court from the orders of the Federal Magistrates Court. The notice of appeal specifies three grounds which may be summarised as follows: - (i) the Federal Magistrates Court should have found that it was open to the Tribunal to find that the appellant was a refugee, (ii) the Tribunal denied the appellant procedural fairness in respect of his persecution, as a member of the Akhil Bharatiya Vidyarthi Parishad (or ABVP), by the Communist Party of India (Marxist) and not the Communist Party of India (Maoist), these being different parties, and (iii) the Tribunal's failure to give the appellant accurate particulars of adverse information (namely, about the difference between the Communist Party of India (Marxist) and the Communist Party of India (Maoist)) constituted a jurisdictional error (citing SZEEU v Minister for Immigration, Multicultural & Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2). 4 The primary judge found that the Tribunal's decision was not affected by jurisdictional error. Before the primary judge the appellant claimed that the Tribunal had not provided the appellant with procedural fairness by failing to comply with s 424AA of the Act. This claim was particularised by reference to the Tribunal having put to the appellant during the hearing that the Communist Party of India and the Communist Party of India (Marxist) were not the same party. The appellant said this constituted the giving of information within the meaning of s 424AA(a) of the Act without complying with the requirements of that section. 5 Section 424AA provides as follows (insofar as relevant): 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: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (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. 6 Section 424AA is part of a statutory scheme contained in Div 4 of Pt 7 of the Act. That scheme includes s 424A as follows: (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies--by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person. (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. (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; or (c) that is non-disclosable information. 7 The primary judge held that the information about the Communist Party of India and the Communist Party of India (Marxist) fell within s 424A(3). As s 424AA was an alternative method of complying with the obligation in s 424A the distinction between the Communist Party of India and the Communist Party of India (Marxist) to which the Tribunal referred during the hearing was not "information" within the meaning of either s 424A or s 424AA (citing SZLXI v Minister for Immigration and Citizenship (2008) 103 ALD 589; [2008] FCA 1270). 8 I agree with the reasoning of the primary judge. Further, the additional grounds of appeal put before this Court do not lead to a result other than dismissal of the appeal. 9 The first ground of appeal is misconceived. Insofar as this ground refers in the notice of appeal to adverse information it is encompassed by grounds two and three, both of which appear to relate to the Tribunal's reference to the Communist Party of India and the Communist Party of India (Marxist) being separate parties (albeit within the same Left Democratic Front coalition). Otherwise the ground is an impermissible attempt to challenge the merits of the Tribunal's decision. 10 Insofar as the second and third appeal grounds refer to the appellant being an active member of the ABVP, factual findings in respect of the appellant's claims about his activities as a member of the ABVP were a matter for the Tribunal. Neither this Court nor the Federal Magistrates Court has jurisdiction to interfere with those findings of fact which were clearly open to the Tribunal on the evidence. Otherwise these grounds relate to an alleged denial of procedural fairness. In SZLXI (2008) 103 ALD 589; [2008] FCA 1270 Cowdroy J held that the exceptions in s 424A(3) must apply to s 424AA as that section is merely an alternative method of providing appellants with information. In SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701 at [23] Edmonds J observed that: [23] In any event, the Minister submitted that no jurisdictional error arises. Section 424AA itself imposes no obligation upon the Tribunal. It provides an alternative means by which the Tribunal may give to the applicant 'information' that it is otherwise required to give in writing pursuant to s 424A(1) of the Act. A jurisdictional error will only arise if there is a breach of s 424A (SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270 at [23]–[28]; SZLWI v Minister for Immigration & Citizenship [2008] FCA 1330 at [17]–[21]; SZLQD v Minister for Immigration & Citizenship [2008] FCA 739 at [12] ). There was no 'information' for the purposes of s 424A(1), and s 424AA was not engaged. I agree with these submissions. 11 This observation supports the approach of the primary judge. Denial of procedural fairness by reason of breach of s 424AA(b) is not established because the information about political parties was not information for the purposes of that section. 12 Further, I am unable to see any unfairness in the Tribunal's approach to this issue. The Tribunal referred to the difference between political parties merely by way of background. The appellant's reference to SZEEU (2006) 150 FCR 214; [2006] FCAFC 2 provides no assistance. As the Minister submitted, this ground is devoid of proper particulars and fails to identify any error by the Tribunal. 13 In his oral submissions to this Court the appellant said he was nervous and unable to represent himself before the Federal Magistrates Court or this Court. He also said that the Tribunal and Federal Magistrates Court had not fully considered his claims so as to make a justifiable decision. These submissions, as the Minister submitted, do not disclose any error which would enable the appeal to be upheld. Further, and as the Minister pointed out, the appellant had legal representation before the Federal Magistrates Court. 14 In essence, the Tribunal rejected the appellant's claims because it did not accept his role in the ABVP. This was a factual finding open to the Tribunal. The appellant has not identified any error in the approach of the Federal Magistrates Court. Accordingly, the appeal must be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.